The Surrogacy (Regulation) Act 2021, a topic of significant attention for Prelims, outlines the legal framework surrounding surrogacy in India. Recently, this Act has been under scrutiny following a petition challenging its restrictions associated with marital status and the right to avail surrogacy.
Overview of Surrogacy
Surrogacy is a process where a woman, known as a surrogate or gestational carrier, carries and gives birth to a child for another person or couple, called the intended parents. This practice takes two forms: altruistic surrogacy and commercial surrogacy.
Altruistic surrogacy doesn’t involve monetary compensation beyond covering medical expenses and insurance during pregnancy. On the other hand, commercial surrogacy involves monetary rewards beyond basic medical expenses and insurance coverage.
Details of the Surrogacy (Regulation) Act, 2021
This Act allows surrogacy only for Indian widows or female divorcees aged between 35 and 45, and legally married couples facing a medical condition that makes surrogacy necessary. The Act also criminalizes commercial surrogacy, imposing punishments including a fine up to Rs 10 lakhs and imprisonment up to 10 years.
Challenges Associated with the Act
Although the Act aims to protect vulnerable women from exploitation and children’s rights, it faces several challenges. Critics argue that it reinforces patriarchal norms by overlooking the economic value of women’s work and infringes upon women’s reproductive rights guaranteed under Article 21 of the Constitution.
Additionally, involving friends or relatives in altruistic surrogacy can lead to emotional complications for all parties involved. Also, without third-party involvement, handling medical and others costs becomes complex for intended parents.
The Act also excludes unmarried women, single men, live-in couples, and same-sex couples from surrogacy services. This exclusion is seen as discriminatory, violating their rights to form a family.
Recent Amendments by the Supreme Court
A government notification issued in March 2023 amended the Act, insisting that “intending couples” must use their own gametes for surrogacy. This amendment was subsequently challenged in the Supreme Court as it violated a woman’s right to parenthood.
The Court interpreted the term “genetically related” to mean related to the husband. It emphasized that the law permitting gestational surrogacy is “woman-centric,” based on her inability to bear a child due to medical or congenital conditions.
The court stayed the operation of Rule 7 of the Surrogacy Act, allowing women suffering from Mayer-Rokitansky-Küster-Hauser Syndrome (a rare disorder affecting the female reproductive system) to undergo surrogacy using donor eggs.
The Way Forward
India needs to focus on inclusivity, ethics, and medical advancements to establish a robust framework for surrogacy. This approach respects individual rights, ensures the well-being of all parties involved, and supports those looking forward to starting families via assisted reproductive technologies.
