Surrogacy in India & Surrogacy Regulation Act, 2021

Table of contents

Context: (TH): The High Court of Delhi observed that surrogacy should not be encouraged in India.
The court was hearing a plea by an Indian-origin couple living in Canada, challenging the Centre’s notification amending the Surrogacy (Regulation) Act 2021 to ban donor surrogacy (disallow surrogacy with the help of donor sperm or eggs).

What is Surrogacy?

Surrogacy is an arrangement where a woman (the surrogate) carries and gives birth to a child for another individual or couple who are unable to conceive or carry a pregnancy of themselves.

Traditional Surrogacy: Traditional surrogacy involves using the intended father’s sperm to fertilise the surrogate’s egg.
- The surrogate carries the pregnancy to term, and the resulting baby is biologically related to the surrogate mother and the intended father.
Gestational Surrogacy: In gestational surrogacy, the baby is not biologically related to the surrogate.
- An embryo, created using the intended father’s sperm (or donor sperm) and the biological mother’s egg (or donor egg), is implanted into the surrogate’s uterus for her to carry to term.

Altruistic Surrogacy: It refers to a surrogacy arrangement where the surrogate does not receive financial compensation beyond reimbursement for medical expenses and other related costs.
- In altruistic surrogacy, the surrogate’s primary motivation is typically to help another individual or couple achieve their dream of having a child.
Commercial Surrogacy: It involves a contractual agreement where the surrogate mother receives financial compensation beyond just reimbursement for medical expenses and other costs associated with the pregnancy.
- This compensation may vary depending on factors such as location, legal regulations, and the specific terms of the surrogacy agreement.

The Act prohibits commercial surrogacy and allows altruistic surrogacy.
The Act permits surrogacy when it is:
1. For intending couples who suffer from proven infertility;
2. Altruistic;
3. Not for commercial purposes;
4. Not for producing children for sale, prostitution or other forms of exploitation; and
5. For any other condition or disease specified through regulations.
The Act also permits Indian widows, divorcees, and married couples of Indian origin living abroad to become parents through altruistic surrogacy (this provision was amended in March 2023).
People who are not allowed to use the services of surrogacy are:
- Couples with one child,
- Foreign nationals,
- In-residence partners or people in “live-in relationships”,
- Single men and women,
- Gay and lesbian couples, and
- Widowers

To obtain a certificate from the appropriate authority, the surrogate mother has to:
1. be a close relative of the intending couple;
2. be an ever-married woman having a child of her own;
3. Be 25 to 35 years old;
4. Not have been a surrogate mother earlier; and
5. Have a certificate of medical and psychological fitness.
A surrogate is prohibited from providing her own gametes for surrogacy by the Act.
A surrogate must not receive any compensation for carrying the child in her womb other than the necessary insurance and medical costs.

Surrogacy clinics cannot undertake surrogacy or its related procedures unless the appropriate authority grants them registration.

The central and state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSBs), respectively.

The Act creates certain offences, which include:
1. Undertaking or advertising commercial surrogacy;
2. Exploiting the surrogate mother;
3. Selling or importing human embryos or gametes for surrogacy, and
4. Abandoning, exploiting or disowning a surrogate child.
These offences will attract a penalty of up to 10 years and a fine of up to 10 lakh rupees.

Upon birth, the child is legally recognised as the biological child of the intended couple.
The surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.
Abortion of the fetus requires consent from both the surrogate mother and the relevant authorities, following the provisions of the Medical Termination of Pregnancy Act.

Lack of Comprehensive Regulations: Concerns about lack of legal protection for both parties involved, and potential loopholes.
Exploitation of Surrogates: Concerns arose about their health or whether they were adequately compensated for their basic health needs.
Commercialization: The commercialization of surrogacy raised ethical questions about treating childbirth as a transactional service.
It brought up concerns about the commodification of women’s bodies and whether financial motives were overriding ethical considerations.
Lack of Legal Clarity: Ambiguity in laws regarding parentage, citizenship, and rights of the child born through surrogacy created uncertainties for intended parents, surrogates, and the children.
The absence of clear laws makes it challenging to address disputes or protect the rights of all parties.
Foreigners and Surrogacy Tourism: India was previously a popular destination for foreigners seeking surrogacy due to its comparatively affordable services.
However, concerns emerged about the exploitation of Indian surrogates and issues related to citizenship and parentage for the children born to foreign parents.

Regulate surrogacy agencies and ensure they adhere to ethical practices, including fair compensation, medical care, and support for surrogates.
Ensure informed consent and comprehensive counseling for all parties involved, emphasizing the emotional, physical, and legal implications of surrogacy.
Encourage altruistic surrogacy where surrogates are motivated by a desire to help others rather than financial gain.
Provide comprehensive healthcare and support services for surrogates throughout the pregnancy and postpartum period.
Establish clear laws regarding parental rights, citizenship, and responsibilities from the outset of the surrogacy arrangement to avoid legal ambiguities.
Establish regulatory bodies or agencies to monitor and oversee surrogacy arrangements, ensuring compliance with established laws and ethical guidelines.
Alternative options: Promote and support other family-building options such as adoption, fostering, or alternative assisted reproductive technologies for individuals or couples unable to conceive.