Simply put, surrogacy is a contractual partnership between intended parents and the surrogate mother. Surrogacy is a socially accepted practise in India, and mythical writings like the Mahabharata mention it. The most frequent justifications for choosing surrogacy are medical issues or health risks to the intended mother's body. For instance, a woman who underwent a hysterectomy (uterus removal) is unable to carry a pregnancy herself but may still desire a biological child. In certain situations, a surrogate mother might carry an embryo that was fertilised using the woman's egg and her partner's sperm.
In traditional surrogacy, the surrogate mother uses her egg; therefore, there is no need for an egg from a different person. This makes the process straightforward and doesn't require the surrogate mother to undergo many fertility treatments. The sperm is placed inside the surrogate mother's uterus using a procedure called intrauterine insemination. The intended mother does not need to undergo any fertility treatments. Only this method is legal in India. Since surrogates are not the child's biological parents, they typically favour gestational surrogacy. As a result, they are less likely to form an emotional bond with the child because they do not share a genetic tie with it. Due to the requirement for both the intended mother and the surrogate to undergo fertility treatments and egg harvesting procedures, gestational surrogacy can be more expensive than traditional surrogacy. The eggs must be produced by the intended mother or a donor, which necessitates hormone injections and close observation. Additionally, the surrogate must go through implantation, hormone therapy, and medical testing.
Surrogacy is helpful for people who can't have a baby on their own, but it can also lead to problems. Commercial surrogacy, where people pay for someone to have their baby, is banned in India for a few reasons. The woman who carries the baby is often treated poorly and not paid fairly.[ii] This can cause problems for her physically, mentally, and financially. Child trafficking has also increased because of surrogacy.[iii] Surrogacy can also make babies seem like things that people can buy, which raises ethical questions. There are also psychological problems with surrogacy.[iv] These were the common reasons why the Government of India banned commercial surrogacy entirely and regulations to govern more than 3000 IVF clinics were passed.[v]
The Act solely permits altruistic surrogacy; therefore, the surrogate mother is only eligible to be compensated for her pregnancy-related medical costs, including insurance. Commercial surrogacy is prohibited, in which the surrogate is compensated in cash or in-kind. Before the intended couple can move forward with the surrogacy, they must receive two credentials from a competent authority: a certificate of eligibility and a certificate of essentiality. Certain requirements must be satisfied in order to receive an essentiality certificate. The pair must present a District Medical Board certificate of infertility attesting to their infertility. The Magistrate Court must also issue a ruling on the child's custody. The surrogate mother must also have insurance to cover postpartum problems for 16 months following delivery.
Additionally, the Act forbids any form of commercial surrogacy advertising. These offences carry a maximum sentence of ten years in prison and a maximum fine of ten lakh rupees. All facilities offering surrogacy treatment are required to register, and practitioners are required to meet certain requirements. The intended pair must be legally wed, meet the age restrictions, and not already have adopted or surrogate children.
The central government published the Surrogacy Regulation Rules, 2022 to lay out the requirements and rules that apply to registered surrogacy clinics. These clinics must employ at least one gynaecologist, anaesthetist, embryologist, and counsellor as part of their minimal personnel requirements. It is possible to hire more staff from ART Level 2 clinics. The gynaecologist must be experienced in performing ART operations and hold a postgraduate degree in gynaecology and obstetrics. Clinics that offer surrogacy must register with the relevant authority and pay the required costs. A certificate of registration is issued after approval and is required to be conspicuously displayed inside the clinic's walls. The applicant has the opportunity to appeal an application denial, cancellation, or suspension within 30 days using the specified appeal form. Surrogacy clinics, their facilities, equipment, and records are all subject to unannounced inspections by authorised parties, under the condition that no stored gametes or embryos are endangered. The guidelines specify that the surrogate mother's voluntary permission is necessary for the surrogacy process. Surrogacy can only be attempted a maximum of three times. In extraordinary circumstances, the gynaecologist may be permitted to implant up to three embryos instead of the standard one. The Medical Termination of Pregnancy Act, 1971's regulations must be followed if the surrogate mother decides to end the pregnancy. Additionally, in order to safeguard the surrogate mother, it is required of the intended couple or woman to have health insurance for a period of 36 months.
The first rule change, which took effect on October 10, 2022, altered Rule 5(2) governing surrogacy insurance coverage. The intended pair is required by the updated rule to buy 36 months of insurance coverage and attest to it by completing an affidavit. Before, either the Metropolitan or the Judicial Magistrate of the First Class had to witness the affidavit's swearing-in. By permitting the affidavit to be sworn before one of two additional sorts of authorities—an Executive Magistrate or a Notary Public—the 2022 Amendment added flexibility to this procedure. This modification is anticipated to speed up the procedure and make it simpler for intended couples to submit applications for surrogacy. The modification gives the intending couple more choices for satisfying the insurance need by extending the list of authorised authorities who can swear the affidavit. This should lead to a quicker and more straightforward application process for surrogacy. In accordance with the second rule change, which was announced in March 2023, intended couples are not permitted to use donor gametes for surrogacy. Previously, the law allowed for the husband's sperm to fertilise a donor oocyte as part of surrogacy therapy, which some people took to suggest that utilising donor gametes was acceptable. The 2023 Amendment, however, substitutes this clause with a new one that expressly forbids the use of donor gametes for couples or single women (widows or divorcees), regardless of gender. The change also makes it clear that surrogate moms are not permitted to donate their gametes. As a result, choosing surrogacy in India may be challenging for intended parents who need donor gametes to conceive a child due to health complications with their own gametes. Along with other limitations based on age, marital status, and medical qualifications, the amendment limits the pool of eligible people who can commission surrogacy.
1. Jan Balaz v. Anand Municipality [2009 SCC OnLine Guj 10446]: In Indian surrogacy law, this is a significant case. The German citizen petitioner agreed to be a surrogate mother for an Indian woman in 2008 in order to have a child. The petitioner secured a birth certificate for the child, who was born in Gujarat, India. The authorities, however, barred the petitioner from taking the child out of India when he attempted to do so. In order to leave India with the child, the petitioner filed a plea with the Gujarat High Court. The petition was first rejected by the court, which cited worries for the welfare of the child and the legitimacy of commercial surrogacy in India. Nevertheless, the court ultimately allowed the petitioner to take the child with them, with some restrictions. The case raised awareness of the problem of commercial surrogacy in India and the requirement for more lucid surrogacy legislation and regulations. It also emphasised the requirement to guarantee the safety and wellbeing of kids born through surrogacy agreements.
2. Baby Manji Yamada v. Union of India [(2008) 13 SCC 518]: In this instance, a Japanese couple received a surrogate child through an Indian surrogate mother. After their divorce, the mother refused to give up custody of the child, and the father was unable to travel to India to pick up the child because he lacked the proper documentation. The case brought up issues about intended parents' and surrogacy clinics' responsibilities as well as the legal standing and rights of children born through surrogacy. In the end, the Supreme Court suggested that the Indian government establish legislation to control surrogacy in India and ordered the Japanese consulate in India to give travel credentials for the kid so that she could be transferred to Japan.
In conclusion, surrogacy rules range between various nations and areas and are always changing. The Surrogacy Regulation Act, 2021 and its accompanying Rules, which govern all facets of surrogacy, provide India with a thorough legal framework. Recent changes to the Rules, however, have introduced new limitations and could provide difficulties for those who need donor gametes to produce a child. Individuals considering surrogacy should get legal counsel to ensure compliance with pertinent laws and regulations because surrogacy rules seek to balance the rights and interests of all parties involved.
