Introduction
Surrogacy is a reproductive arrangement in which a woman (the surrogate mother) carries and delivers a child for another person or couple (the intended parents). Surrogacy has been a topic of legal and ethical debate worldwide, leading to diverse regulatory frameworks. In India, surrogacy is governed by the Surrogacy (Regulation) Act, 2021, which lays down strict provisions to prevent commercial exploitation while permitting altruistic surrogacy.
Types of Surrogacies
Surrogacy can be categorized into different types based on genetic relations and financial arrangements:
A. Traditional Surrogacy
- The surrogate mother is biologically related to the child as her egg is used for conception.
- Fertilization occurs via artificial insemination or intrauterine insemination (IUI).
- Less common due to legal and ethical complications.
B. Gestational Surrogacy
- The surrogate mother has no genetic link to the child.
- The embryo is created via in-vitro fertilization (IVF) using gametes from the intended parents or donors.
- Legally preferred as it reduces parental disputes.
C. Altruistic Surrogacy
- No financial compensation is provided to the surrogate mother except for medical and essential expenses.
- Permitted under Indian law to prevent commercial exploitation.
D. Commercial Surrogacy
- The surrogate mother is compensated beyond medical expenses.
- Banned in India under the Surrogacy (Regulation) Act, 2021 due to concerns over exploitation and unethical practices.
Legal Framework Governing Surrogacy in India
A. Surrogacy (Regulation) Act, 2021
The key provisions of this act include:
- Eligibility Criteria for Intended Parents:
- Only legally married Indian couples (heterosexual) with proven infertility can opt for surrogacy.
- The wife must be aged 23-50 years, and the husband must be 26-55 years old.
- Eligibility Criteria for Surrogate Mothers:
- Must be a close relative of the intended parents.
- Must be married and have at least one biological child.
- Can act as a surrogate only once.
- Ban on Commercial Surrogacy:
- Only altruistic surrogacy is permitted.
- Clinics must be registered and adhere to ethical guidelines.
B. Assisted Reproductive Technology (Regulation) Act, 2021
- Regulates ART clinics to prevent misuse and ensure ethical practices.
- Prevents sex selection and ensures genetic integrity in surrogacy cases.
Landmark Judgments and Case Studies
A. Baby Manji Yamada v. Union of India (2008)
- The Supreme Court of India intervened in a surrogacy dispute involving a Japanese couple and an Indian surrogate mother.
- The case highlighted legal ambiguities in surrogacy laws before regulation was introduced.
- Resulted in international surrogacy being restricted to prevent complications.
B. Jan Balaz v. Anand Municipality (2009)
- A German couple sought Indian citizenship for twins born via surrogacy in India.
- The Gujarat High Court ruled that children born through surrogacy should be entitled to Indian citizenship.
- Emphasized the need for clear nationality laws in surrogacy cases.
C. Union of India v. Suchita Srivastava (2009)
- Reaffirmed a woman’s reproductive rights, impacting surrogacy regulations to ensure surrogate mothers’ consent and autonomy.
Ethical and Social Concerns in Surrogacy
A. Exploitation of Women
- Commercial surrogacy led to the exploitation of economically vulnerable women before it was banned.
B. Child Rights and Citizenship Issues
- Cases of abandoned children born via surrogacy raised concerns about child protection laws.
C. Restrictions on LGBTQ+ and Single Parents
- The exclusion of LGBTQ+ couples and single individuals from surrogacy remains a contentious issue in India.
Conclusion
The Surrogacy (Regulation) Act, 2021 ensures ethical and controlled surrogacy in India. While it protects surrogate mothers and prevents commercialization, its restrictions limit options for various groups. Future amendments may be required to balance ethical concerns with reproductive rights.