Surrogacy in India:
Current Scenerio and Ethical Perspective

Introduction
Surrogacy Regulation Act 2021 and The Assisted Reproductive
Technology (Regulation)Act 2021(ART Act) came into force early
this year.
It aims to regulate the multimillion dollar industry of reproduction
medicine, stipulated who can access assisted Reproductive
technologies and procedures.

Moral and Ethical Issues Involved
The commoditization of children through commercial
surrogacy,which puts women’s reproductive capacity on the
market is one of the major issues because the act of
birthing is separated from the idea of motherhood,which
devalues childbearing by considering women as “objects of
reproductive commerce “ and effectively “rents” wombs.

The Surrogacy (Regulation) ACT 2021
The Salient features of the act are-
• Commercial surrogacy is completely illegal with exception of
altruistic surrogacy.
• Unless licensed under this act,no surrogacy clinics may
engage in surrogacy operations
• Advertisement is completely prohibited.

• A ‘Certificate of Essentiality/Infertility’ from the National
/State Assisted Reproductive Technology and surrogacy
Board is required when an intended couple has a medical
need for surrogacy.
• Registration of the clinics must be renewed every three
years.

Who is eligible for Surrogacy under this Act
• Indian Infertile couple
• Legally married Indian man and woman>21and>18yrs respectively
have a medical indication necessitating Gestational Surrogacy.
• Are of the age of 23-50 yrs for the woman;26–55yrs for the man
• Do not have a child except one who is mentally/physically challenged/
suffers from a life threatening disorder or fatal illness with no
permanent cure.

• Widowed woman between age of 35 and 45 years
• Divorced woman between age of 35 and 45years

Who is not eligible?
• Single/Widowed/divorced Men
• Single unmarried women
• Couple in “live-in” relationship
• LGBTQ intending partners
• Foreign couples

What is allowed for the Surrogate mother under
the Altruistic Surrogacy Arrangements?
⚫Medical Expenses
⚫“Such other Prescribed Expenses” incurred on the surrogate
mother
⚫Insurance Coverage

What is Prohibited for the Surrogate
mother under the Altruistic
Surrogacy Arrangements?
⚫ Charge
⚫ Fees
⚫Remuneration
⚫Expenses
⚫Monetary Incentivesof whatever naturecash or kind
⚫To Surrogate Motheror herdependentsor her representatives

Termination of Pregnancy during Surrogacy
⚫Written consent of the Surrogate Mother
⚫Authorisation of the same by AA Subject to and in
compliance of the MTP Act 1971
⚫No person/ organisation/ clinic/ Lab/ Clinical Establishment of any
kind shall force the surrogate mother to abort at any stage of
pregnancy except in such conditions as may be prescribed

What if the Surrogate Mother changes her
mind?
The Surrogate Mother shall have the option to withdraw her consent for
surrogacy before the implantation of the embryo in herwomb

Surrogacy Regulation Act (SRA) 2021 :
⚫Close Relative replaced by “willing woman” forsurrogate mother
⚫Intended couple “Indian origin” instead of Indian citizen
:PIO/OCI permitted?
⚫Single woman also allowed but age group 35 to 45 : at advanced age
donorembryo may be only option
⚫Embryo not genetically related to surrogate mother – means that
donor gametes also likely to be allowed. 2016 Bill allowed genetic
gametes only from Intended parents

⚫Insurance cover mandated 36 months
⚫Clauseof harsh punishments persist
⚫Intending couple should not have any biological/ adopted /
surrogate child except mentally physically disabled – ONE CHILD
Norm
⚫Birth Affidavit instead of Birth Certificate
⚫Commercial surrogacy is banned – no payments!
⚫Time period for transitionand currentcases status not specifie

Assisted Reproductive Technology
(Regulation)ACT 2021
It seeks to regulate and supervise Assisted Reproductive Technology
(ART) clinics and ART banks, prevent misuse, adopt safe and ethical practice and so
on.
It further seeks stringent punishment for those practicing sex selection, sale of
human embryos or gametes, or found running agencies, rackets and organisations
for such practices in violation of the law.

• For First-Time Offenders:
It may attract a penalty between Rs. 5 lakhs and Rs. 10
lakhs.
• For Subsequent Contraventions:
Punishable with imprisonment for a term between eight
and 12 years, and a fine between Rs. 10 and Rs. 20
lakh.
• Any Clinic or Bank Advertising or Offering Sex-
Selective ART:
Punishable with imprisonment between five and ten years,
or fine between Rs. 10 lakh and Rs. 25 lakh, or both.

Role of Judiciary (Landmark Case)
Baby Manji Yamada vs Union of India.
was the first case wherein a decision linked to surrogacy was made by the Apex
Court and it marked the importance of developing surrogacy regulation laws in
India. Commercial Surrogacy is banned in many states.

Jan Balaz Vs. Anand Municipality and 6 Ors. (AIR2010Guj21)the question of
the nationality of a surrogate child was brought under question. The child was
born to the surrogate mother of Indian nationality. However, the father of the
child, seeking rights over the child, was a German national.
These cases open a flood gate of unresolved legal issues as the court has not laid down
any guidelines but provided for adoption as a provisional measure for saving the
surrogate child from being rendered stateless and parentless

Conclusion
For years, surrogacy has been the most viable option for Indian
couples who struggle with infertility. As per data, one in six urban
couples in India are infertile.However, this all came to a halt after the
central government passed a law banning commercial surrogacy in
the nation last December. India banned surrogacy completely after a
decade-long debate over the ethics of allowing people to pay women
to carry their children

In India, ARTs are offered by an expensive privatised medical industry that was
unregulated for decades. The technologies can be used to transform traditional
notions of family and strengthen the status of same-sex and other queer couples by
expanding the ability to reproduce beyond heterosexual marital unions. Use of ARTs
can also entrench notions of genetic parenthood as the “true” form of parenthood.
ARTs provoke complex legal, ethical and social dilemmas, and their regulation
requires consideration and balancing of conflicting interests and values.

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