Supreme Court Reviews Surrogacy Regulation Laws in India

The Supreme Court of India is set to examine the Surrogacy Regulation Act and the Assisted Reproductive Technology (Regulation) Act of 2021. The review follows multiple petitions challenging age restrictions and other provisions in the current laws. The court aims to ensure the protection of surrogate mothers and address concerns about potential exploitation.

Overview of Surrogacy Laws

The Surrogacy Regulation Act and the Assisted Reproductive Technology Act were enacted to regulate surrogacy practices in India. These laws establish age limits for intended parents and surrogate mothers. Intended mothers must be aged between 23 and 50 years. Intended fathers must be between 26 and 55 years. Surrogate mothers must be married, aged 25 to 35, and have at least one biological child. They can only serve as surrogates once in their lifetime.

Concerns Over Age Restrictions

Petitioners argue that the age restrictions are discriminatory. They claim these limitations deny reproductive rights to certain groups, including unmarried women. The laws impose a state-defined notion of the ideal family, which may not reflect diverse family structures in modern society.

Safeguarding Surrogate Mothers

The Supreme Court has emphasised the importance of protecting surrogate mothers from exploitation. The court has proposed the creation of a robust system to monitor surrogacy practices. This includes establishing a database to prevent repeated exploitation of the same surrogate mother. The court advocates for a designated authority to manage compensation, rather than direct payments from intended parents.

Compensation Mechanisms

Current regulations allow for only altruistic surrogacy, covering medical expenses and insurance. Petitioners have brought into light that this compensation is inadequate. They argue for a more comprehensive compensation system to ensure fair remuneration for surrogate mothers. The court has acknowledged these concerns and is open to considering suggestions for improvement.

Legal Challenges and Implications

Dr Arun Muthuvel, an infertility specialist, leads the legal challenge against the surrogacy laws. He argues that the laws are exclusionary and arbitrary, limiting reproductive justice. Other petitions echo similar sentiments, particularly regarding the exclusion of unmarried women and restrictions on oocyte donations under the ART Act. The outcome of this review may impact the landscape of reproductive rights in India.

Government’s Position

The government, represented by Additional Solicitor General Aishwarya Bhati, has committed to filing written submissions. The Centre has expressed a willingness to consider suggestions for improving the regulatory framework. The Supreme Court’s interim order will guide the government’s actions moving forward.

Future Considerations

The Supreme Court’s examination of these laws could lead to reforms. It may redefine the rights of surrogate mothers and intended parents. The court’s decisions will likely influence public policy on surrogacy and reproductive rights in India.

Questions for UPSC:

1. Critically discuss the implications of age restrictions in surrogacy laws on reproductive rights in India.
2. Examine the role of altruistic surrogacy in the context of commercial surrogacy prohibition in India.
3. Analyse the potential impact of a designated authority for surrogate compensation on the surrogacy industry.
4. Point out the challenges faced by unmarried women in accessing reproductive technologies under current laws.

Answer Hints:

1. Critically discuss the implications of age restrictions in surrogacy laws on reproductive rights in India.

1. Age restrictions limit the reproductive choices of individuals, particularly unmarried women and those outside the specified age brackets.
2. Such restrictions may reinforce traditional family structures, disregarding diverse modern family dynamics.
3. They can be viewed as discriminatory, violating principles of equality and personal autonomy.
4. The laws may lead to unintended consequences, such as increased demand for illegal surrogacy practices.
5. Legal challenges against these restrictions highlight the need for a more inclusive approach to reproductive rights.

2. Examine the role of altruistic surrogacy in the context of commercial surrogacy prohibition in India.

1. Altruistic surrogacy aims to eliminate exploitation by prohibiting profit motives in surrogacy arrangements.
2. This model is intended to protect surrogate mothers but often results in inadequate compensation and support.
3. It reflects a moral stance against commercial surrogacy, aligning with ethical considerations in reproductive technologies.
4. However, the lack of financial incentives can discourage potential surrogates, limiting the availability of surrogacy options.
5. The balance between altruism and fair compensation remains a critical issue in the ongoing debate about surrogacy laws.

3. Analyse the potential impact of a designated authority for surrogate compensation on the surrogacy industry.

1. A designated authority could standardize compensation, ensuring fair and transparent payments to surrogate mothers.
2. This may reduce the risk of exploitation and improve the overall welfare of surrogates.
3. It could streamline the payment process, enhancing trust between intended parents and surrogates.
4. Such an authority may also facilitate better regulation of surrogacy practices, promoting ethical standards.
5. However, the effectiveness of this authority would depend on its implementation and oversight mechanisms.

4. Point out the challenges faced by unmarried women in accessing reproductive technologies under current laws.

1. Current surrogacy laws exclude unmarried women, limiting their reproductive choices and rights.
2. This exclusion reflects societal biases and traditional views on family structures, undermining gender equality.
3. Unmarried women may face difficulties in accessing necessary reproductive technologies like IVF and oocyte donation.
4. The lack of legal recognition for diverse family forms hampers the reproductive autonomy of unmarried individuals.
5. Advocacy for inclusive policies is essential to address these systemic challenges and promote reproductive justice.