A recent case opened up discussions about assisted reproductive technology and surrogacy laws in India. A petition was submitted to the Delhi High Court challenging the current laws that exclude single men and women from having a child via surrogacy. The petition also demanded the decriminalization of commercial surrogacy, which is currently punishable.
Surrogacy (Regulation) Act, 2021
The current law, known as the Surrogacy (Regulation) Act, 2021, defines who can avail of surrogacy and the conditions under which it can occur. It allows for surrogacy for a widow or divorcee aged between 35 to 45 years, or a legally married couple, if they have a medical condition that necessitates this option. It notably bans commercial surrogacy, with breaching the law resulting in a jail term of up to 10 years and a fine of up to Rs 10 lakhs. However, challenges arise with the enforcement of this law.
Issues with Surrogacy Regulation Act
While many argue that the state should protect both surrogate mothers and children from exploitation, critics say the current Act doesn’t balance these two interests adequately. Some point out that it reinforces patriarchal norms and denies a legitimate source of income for potential surrogate mothers. Others highlight issues related to emotional complications and lack of third-party involvement in altruistic surrogacy.
What is Surrogacy?
Surrogacy is an arrangement where a woman agrees to carry and give birth to a child on behalf of another person or couple. There are two types – altruistic surrogacy, where no monetary compensation is involved beyond medical expenses and insurance coverage, and commercial surrogacy, which includes monetary benefit or reward exceeding the basic medical expenses and insurance coverage.
Assisted Reproductive Technology (ART)
Assisted Reproductive Technology, or ART, is used to treat infertility and involves handling both a woman’s egg and a man’s sperm. Commonly known treatments include In Vitro Fertilization (IVF) which involves removing eggs from a woman’s body, mixing them with sperm to create embryos, and implanting them back into the woman’s body.
Legal Provisions of Assisted Reproductive Technology Act
The Assisted Reproductive Technology (Regulation) Act 2021 provides a system for implementing laws on surrogacy. It aims at regulating and supervising ART clinics and banks, preventing misuse, and ensuring safe and ethical practice of ART services.
Shortcomings of Assisted Reproductive Technology Act
Many argue that the Act has its limitations – it excludes unmarried men, divorced men, widowed men, unmarried heterosexual couples, trans persons and homosexual couples from availing ART services. This significantly reduces the reproductive choices of those excluded. The prices of the services are also not regulated.
The Way Forward
With India being a major hub for these practices, the current Act is seen as a step in the right direction. However, there needs to be ongoing vigilance to ensure that the law evolves with rapidly advancing technology, demands of morality, and societal changes. The ART Act should also consider including more comprehensive provisions considering the different types of relationships and the growing need for assisted reproduction.