Surrogacy Law faces challenge in Court

Distinct features of the Surrogacy (Regulation) Act, 2021:

• Definition: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
• Regulation: The Centre and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively.
  • 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.
• The Act allows ‘altruistic surrogacy’ — wherein only the medical expenses and insurance coverage is provided by the couple to the surrogate mother during pregnancy. No other monetary consideration will be permitted.
• Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
• Eligibility criteria: An eligibility certificate mandates that the couple fulfil the following conditions:
• They should be Indian citizens who have been married for at least five years;
• the female must be between 23 to 50 years and the male, 26 to 55 years;
• they cannot have any surviving children (biological, adopted or surrogate);
• However, this would not include a ‘child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness.’

Issues raised:

• Restrictive: the laws do not allow single men to have child through surrogacy.
• Vague age criteria: Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions. Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
• The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method.
• doesn’t define “close relatives” as it is hard to regulate commercial surrogacy in this context.
• Reproductive rights: Reproductive Rights of women are restricted as State deciding mode of Parenthood. It Restricts basic human right (of Having a Child) and article 14 because of the discriminatory approach on the basis of nationality, marital status and sexual orientation.
• The Act doesn’t address issues like Postpartum problems.

Way ahead:

• Surrogacy comes under the reproductive choices of women and it is included as a fundamental right under the purview of Article 21 of the Indian Constitution.
• If a critical mass builds up, amendments might have to be resorted to in order to resolve the grievances and ensure access for all categories of parents.
• Rather than penalising surrogacy, the person providing a womb for surrogacy must be secured with a contract, ensuring proper, insurance and medical checks.

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