Amendment in Surrogacy Law

24 Feb Amendment in Surrogacy Law

This article covers ‘Daily Current Affairs’ and the topic details of ”Amendment in Surrogacy Law”.This topic is relevant in the “Social Issues” section of the UPSC CSE exam.

Why in the News?

The Central government has amended the Surrogacy (Regulation) Rules, 2022, to permit the use of donor gametes, which consist of sperm and egg cells.

About the amendment

• The recent alterations to surrogacy regulations by the Central government now allow married couples facing medical complications and opting for surrogacy to utilise donor gametes, offering substantial relief. Under the Surrogacy (Regulation) Act, 2021, married couples were initially prohibited from using donor gametes.

• As defined, gametes are reproductive cells, with female gametes termed as ova or egg cells and male gametes referred to as sperm. A notification issued by the Union Ministry of Health and Family Welfare on 21 February outlined that couples engaging in surrogacy should generally utilise their own gametes for conceiving a surrogate child.

• However, if a District Magistrate Board certifies a medical condition for either the husband or wife, the couple is permitted to use a donor gamete. It’s important to note that the notification allows only one of the two partners, either the wife or husband, to utilise a donor gamete.

• According to the updated regulations, a child born through surrogacy must have at least one gamete from the intended parents. Consequently, a married couple wherein both partners face medical challenges or are incapable of using their own gametes cannot opt for surrogacy.

About Surrogacy

Surrogacy is an arrangement wherein a woman, known as the surrogate, agrees to undergo pregnancy and childbirth on behalf of another individual or couple, referred to as the intended parent/s. The surrogate, also sometimes called a gestational carrier, is a woman who becomes pregnant, carries, and gives birth to a child for the intended parent/s.

• Altruistic Surrogacy: This form of surrogacy involves no financial compensation for the surrogate mother, except for covering medical expenses and providing insurance coverage during pregnancy.

• Commercial Surrogacy: In contrast, commercial surrogacy encompasses surrogacy arrangements or associated procedures conducted for financial gain or rewards, whether in cash or kind, surpassing the basic coverage of medical expenses and insurance.

Significant provisions of the Surrogacy (Regulation) Act, 2021

Enacted in 2021, the Surrogacy (Regulation) Act aims to establish a framework for ethical and responsible surrogacy practices in India. Here’s an overview of its key provisions:

1.  Altruistic Surrogacy Only: The Act prohibits commercial surrogacy, where intended parents pay the surrogate mother for carrying the child. This provision aims to prevent the exploitation and commodification of women’s bodies. Only altruistic surrogacy is allowed, where the surrogate mother is not financially compensated beyond reasonable medical expenses and insurance coverage.

1. Eligibility Criteria: The Act specifies strict eligibility criteria for both intending parents and surrogate mothers.

Intending parents:

• Must be a legally married Indian couple with one spouse being infertile.
• The intending woman must be between 25 and 50 years old, and the intending man must be between 26 and 55 years old.
• Neither can have a biological, adopted, or previously surrogate child.

Surrogate mother:

• Must be a close relative (sister, sister-in-law, daughter, daughter-in-law, niece) of the intending couple, between 25 and 45 years old.
• She must have delivered her own child previously.
• Cannot act as a surrogate more than twice in her lifetime.

1. Informed Consent and Protection: The Act mandates written informed consent from the surrogate mother, obtained at least two weeks before embryo implantation. This ensures she fully understands the process, its risks, and her rights.

Although the Act:

• Prohibits abandonment of the child born through surrogacy by the intending couple.
• Guarantees rights and inheritance for the surrogate child, just as any biological child.
• Regulates the number of embryos allowed for implantation to minimise risks.
• Prohibits sex selection for the embryo.

1. Regulatory Framework: The Act establishes a National Assisted Reproductive Technology and Surrogacy Board to oversee the implementation of the legislation. State-level boards are also established for monitoring and grievance redressal.

1. Registration and Oversight: The Act mandates registration of all surrogacy clinics and strict adherence to ethical guidelines during the process.

Challenges:

• The Exploitation of the Surrogate and the Child: The prohibition of commercial surrogacy shifts the approach from one centred on rights to one based on needs, thereby infringing upon women’s autonomy in making their reproductive choices and their right to parenthood. While the intent may be to prevent the exploitation of economically disadvantaged women in surrogacy and safeguard the child’s right to be born, the existing Act fails to strike a balance between these two interests.

• Reinforces Patriarchal Norms: The legislation reinforces traditional patriarchal norms in society, devaluing women’s work by assigning no economic value. This directly impacts women’s fundamental rights to reproductive freedom as guaranteed under Article 21 of the constitution.

• Emotional Complications: Engaging a friend or relative as a surrogate in altruistic surrogacy can lead to emotional complexities for both intending parents and the surrogate child. The risk of straining relationships during and after the surrogacy period is considerable. Moreover, the limited pool of willing relatives restricts the options for intending couples in selecting a surrogate mother.

• No Third-Party Involvement: Altruistic surrogacy lacks the participation of a third party. The absence of a third party means that the intending couple bears all medical and miscellaneous expenses during the surrogacy process. Third-party involvement is beneficial in guiding both the intending couple and the surrogate mother through the intricate process, which may be challenging in the case of altruistic surrogacy.

Mains practice questions 

Q1. How do you view the balance between a woman’s autonomy in reproductive decisions and the potential for exploitation in commercial surrogacy?

Himanshu Mishra

I am a content developer and have done my Post Graduation in Political Science. I have given 2 UPSC mains, 1 IB ACIO interview and have cleared UGC NET JRF too.