Date: 04/03/2023

Relevance: GS-2: Issues relating to the development and management of Social Sector/Services relating to Health, Education, and Human Resources.

Key Phrases: altruistic, profiteering, racketeering, exploitation, obstetricians, paediatricians, Assisted Reproductive Technology, orphanage.

Why in News?

• India has been a hub for surrogacy, with foreign couples flocking to the country to have a child through this method.
• However, commercialization of surrogacy has caused immense grief and exploitation of the surrogate mother.
• The government has now introduced a new law on surrogacy, which aims to put an end to profiteering, racketeering, and exploitation in surrogacy.

What are the eligibility criteria for couples?

• Under the new law, the commissioning parents, i.e., the couple who wish to have a child through surrogacy, have first to approach a government medical board, consisting of obstetricians, paediatricians, and other specialists.
• The woman and man in such a case have to be between 25 and 50 years of age.
• They should not have had a child, either naturally conceived, adopted, or born out of surrogacy.
• They should also have with them a clear medical and radiological report, and sometimes if asked specifically, a report that also clears them of genetic anomalies.
• Furthermore, the couple should have an insurance policy for the surrogate mother to cover her medical needs for 36 months from the date of embryo transfer.
• Once the board validates the couple’s submission, an essentiality certificate is issued to them.
• The certificate then has to be submitted to the court of a first-class judicial magistrate for a suitable order.
• The order would serve as the proof of birth for the child born of surrogacy, and so also enable the commissioning couple to register their child in the municipality concerned.

Who is eligible to be a surrogate?

• As required by the law, the surrogate has to be eligible too.
• She has to be between 25 and 35 years of age; be married with a child of her own.
• She should also be a first-time surrogate. Furthermore, a psychiatrist has to certify her as being mentally fit.
• Once the couple and the surrogate have obtained their eligibility certificates, they can approach an Assisted Reproductive Technology (ART) centre for the embryo transfer.
• The law also says the surrogate and the couple would have to have their Aadhaar cards linked.
• It would help make the biometrics of the persons in the arrangement traceable, thereby reducing the scope of malpractice significantly.

How does the law address commercialisation of surrogacy?

• The sense of the law is that the practice of surrogacy has to be altruistic in nature.
• Hence, it has banned commercialisation of the surrogacy.
• No one can sell or buy human embryos and gametes.
• No one can sell or buy the services of a surrogate.
• Furthermore, no payment, reward, benefit, fees, renumeration, or inducement can be offered to the surrogate, her dependents, or her representative.
• Also, the law has banned the export of embryos to foreign countries.
• Even transferring embryos between labs or between ART centres requires the permission of the appropriate authorities.
• Those caught violating the ban will be fined and jailed for up to 10 years.

Issues in the Law:

• The Indian marriage act recognises only marriage between heterosexual individuals. Hence, gay couples cannot employ surrogacy to have a child.
• The surrogate, once she has entered into the contract, cannot refuse to carry the pregnancy to term.
• She cannot terminate her pregnancy without permission from the appropriate authority.
• The law says the embryo should be genetically related to the couple, either to the man or to the woman or both. Embryo donation is not allowed in surrogacy.
• The law grants a divorcee or a widow to offer her eggs for surrogacy, on the condition that she is between 35 and 45 years of age.
• If a couple from India utilizes the services of a surrogate outside the country, the child born of such an act will not be recognized as an Indian citizen.
• If the commissioning couple dies before the child is born, the onus of raising the child falls on the nominees of the couple appointed at the time of signing the surrogacy contract.
• The nominees would have to bear the responsibility of the newborn child. However, at a later point, if they so wish, the nominees can give up the child for adoption or to an orphanage.
• The children so born can claim the right to know they were born of surrogacy when they turn 18.
• They can also exercise their right to trace the identity of the surrogate mother.

Conclusion:

• The new law on surrogacy in India aims to regulate and restrict the practice of commercial surrogacy while ensuring that surrogacy is conducted in an altruistic manner.
• While the law is seen as a positive step in addressing the issues of exploitation and profiteering in surrogacy, there is a need to closely monitor its implementation to ensure that the rights and interests of all parties involved are protected.

Source: The Hindu BL

Mains Question:

Q. Discuss the main provisions of the 2022 surrogacy law in India, and examine its potential impact on the practice of surrogacy in the country. (250 Words).