CRITICAL ANALYSIS OF SURROGACY REGULATION ACT 2021 AND ASSISTED REPRODUCTIVE TECHNOLOGY REGULATION ACT 2021
Dr. Nitu Tiwari
Professor, M.B. Khalsa Law College
Abstract - After years of struggle by activists, the Surrogacy (Regulation) Act, 2021 was enacted last year by Parliament to introduce and regulate the process of surrogacy. The Act was made effective on January 25 after the notification in the Official Gazette by the Union Government. There have been Bills passed in India for regulating surrogacy to allow those women who cannot conceive even after various fertility procedures to fulfill their dream of motherhood, and at the same time safeguard the right and integrity of the surrogate mother. The banning of commercial surrogacy moves from the rights-based approach to a needs-based approach, thus removing the women‟s autonomy to make their own reproductive decisions and right to parenthood. One could argue that the state must stop the exploitation of poor women under surrogacy and protect the child‟s right to be born.
However, the current Act fails to balance these two interests.
Keyword: commercial surrogacy, Surrogacy act 2021, ART act 2021.
1 INTRODUCTION
The word “Surrogacy” comes from the Latin word “Surrogates” which means a
“substitute” or an alternate option.
Surrogacy is an act of reproductive practice where a third party conceives and gives birth to a child. The intending parents and surrogate mother enter into a contractual arrangement which states that after the child is born, the surrogate mother would hand over the child to the intending parents without having any legal or parental obligation over the child.
The Surrogacy (Regulation) Act 2021 came into effect from 25th January 2022.
The Act aims to prohibit commercial surrogacy and allows for altruistic surrogacy. In commercial surrogacy, the surrogate mother is compensated for her services beyond reimbursement for her medical expenses. The arrangement of compensation in an unequal society could potentially pave way for exploitation of surrogate mothers and the intending parents. In altruistic surrogacy, the surrogate mother doesn‟t receive any monetary compensation other than the medical expenses and insurance during the pregnancy. Commercial surrogacy was legalized in India back in 2002. Due to the absence of legal regulations and lack of implementation, surrogate mothers faced multiple challenges, including exploitation, unhygienic living conditions, and unfair treatment. Thus, the law is a welcome move in the right direction; however, banning commercial
surrogacy has created its own set of challenges.
The Act reinforces traditional patriarchal norms of our society that attributes no economic value to women‟s work and, directly affecting the fundamental rights of the women to reproduce under Article 21 of the constitution. The altruistic surrogacy model expects the women to go through the physical and emotional pain and labor of giving birth to a child only out of compassion which is far removed from the existing reality. Having such unrealistic expectations reinforces the patriarchal attitude of the society and controlling the autonomy of people with reproductive organs. Banning commercial surrogacy also denies a legitimate source of income of the surrogates, further limiting the number of women to willingly surrogate.
Overall, this step indirectly denies children to the couples choosing to embrace parenthood.
Further, there are multiple disadvantages of altruistic surrogacy.
Having a friend or relative as a surrogate mother may lead to emotional complications not only for the intending parents but also for the surrogate child as there is great deal of risking the relationship in the course of surrogacy period and post birth. Altruistic surrogacy also limits the option of the intending couple in choosing a surrogate mother as very limited relatives will be ready to undergo the process.
2 THE SURROGACY (REGULATION) ACT 2021
The Indian Parliament, in early December 2021 passed two bills which became landmark acts - Assisted Reproductive Technology (Regulation) Act and Surrogacy (Regulation) Act. Earlier while the Surrogacy (Regulation) Bill was passed in Lock Sabah, it could not be passed in the Rajya Sabah which instead relegated it to a Parliamentary Standing Committee for deliberation. Finally, on 25th December 2021, the Surrogacy (Regulation) Act, 2021 received President‟s assent in order to regulate the practice and process of surrogacy.
The key features of the surrogacy (Regulation) Act, 2021 are as follows:
Commercial surrogacy is strictly prohibited and only altruistic surrogacy can be practiced.
No surrogacy clinics, unless registered under this Act, shall be involved in any surrogacy activities or procedures; or employ any person who does not possess qualifications prescribed in the Act.
Every clinic which is conducting surrogacy procedures shall within a period of sixty days, from the date of appointment of the appropriate authority, apply for registration of their clinics. Registration shall be renewed after every 3 years.
No surrogacy clinic, gynecologist, embryologist, or any other medical practitioner shall conduct or promote commercial surrogacy in any form. Under the 2021 Act, only altruistic surrogacy is permitted.
The intended couple shall be a legally married Indian man and woman, the man shall be between the ages of 26-55 years and the woman shall be between the ages of 25-50 years, and shall not have any previous biological, adopted, or surrogate child.
The surrogate mother shall be an Indian woman between the age of 35-45 years, intending to avail the surrogacy. Any woman intending to be a surrogate mother cannot be a surrogate for more than once in her lifetime.
When an intending couple has a medical necessitating surrogacy, shall obtain a „Certificate of Essentiality/Infertility‟ from the National/State Assisted Reproductive Technology and Surrogacy Board.
All the known side effects and after- effects of such procedure shall be well informed to the surrogate mother. Also, written informed consent shall be obtained from the surrogate mother, in the language she understands.
There shall be established a Registry be called National Assisted Reproductive Technology and Surrogacy Registry for the purpose of registration of surrogacy clinics under this Act. Along with Centre, every State and Union Territories shall establish a similar kind of Board for surrogacy matters.
According to the Surrogacy (Regulation) Act, 2021 any couple involved in commercial surrogacy shall be punished for first offence with an imprisonment up to 5 years and fine up to Rs 50,000; and for subsequent offence, imprisonment shall be up to 10 years and fine up to Rs 1,00,000. Any person, organisation or clinic involved in exploitation of surrogate mothers or childrens born through surrogacy, shall be punished with imprisonment for a term which may extend to 10 years and fine which may extend to Rs 10 lakhs.
2.1 Need for a Surrogacy Act in India:
India has emerged as a hub for infertility treatment, attracting people from the world over with its state of the art technology and competitive prices to treat infertility.
Due to prevailing socio economic inequities, underprivileged women found an option to „rent their wombs‟ and thereby make money to take care of their expenses.
Middle men inveigled themselves into the scene and exploited these women. Several instances began to emerge where women, in often desperate straits, started lodging police complaints after they did
not receive the promised sum from the middle men.
In 2008 a Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split with both of them refusing to take the child.
2.2 Controversies behind the Act
It does not allow single women, or men, or gay couples to go in for surrogacy.
Brokers Continue to operate, though with less temerity and more covertly, sometimes with hospital authorities, to pull wool over the eyes of the appropriate authority and law enforcement officials.
Exploitation of the Surrogate and the Child: The state must stop the exploitation of poor women under surrogacy and protect the child‟s right to be born.
However, the current Act fails to balance these two interests.
Reinforces Patriarchal Norms:
It reinforces traditional patriarchal norms of our society that attributes no economic value to women‟s work and directly affects the fundamental rights of the women to reproduce under Article 21 of the constitution.
Denies Legitimate income to Surrogates:
Banning commercial surrogacy also denies a legitimate source of income of the surrogates, further limiting the number of women willingly to surrogate.
Emotional Complications:
In altruistic surrogacy, a friend or relative as a surrogate mother may lead to emotional complications not only for the intended parents but also for the surrogate child as there is great deal of risk to the relationship in the course of surrogacy period and post birth.
No Third-Party Involvement:
In an altruistic surrogacy, there is no third-party involvement.
A third-party involvement ensures that the intended couple will bear and support the medical and other
miscellaneous expenses during the surrogacy process.
3 CONSTITUTIONAL SCRUTINY OF THE SURROGACY (REGULATION) ACT, 2021 In India the major obstacle for surrogacy is balancing the different interests of both parties. On one side, it is the duty of the State to prevent exploitation of surrogate mothers and protect the rights of the unborn child, while on the other hand, the right of the women to make their own reproductive choices and rights of the intended parents. India‟s regulation of surrogacy is still struggling to find a right balance between these conflicting interests.
In Devika Biswas v. Union of India, the Apex Court held that Right to Reproduction was an essential facet of the
„Right to Life‟ under Article 21 of the Indian Constitution. Right to Reproduction includes the right to carry a baby, giving birth and raising them. Thus restricting surrogacy to a particular group of age among heterosexual couples only, creates a partial imbalance. The communities such as single people, older couples, LGBTQ+ couples, are all completely denied the right to have reproductive choices, which, arguably, is a violation of Article 21 as well as Article 14 of the Indian Constitution.
Experts have argued that the conflicting provisions in the Surrogacy (Regulation) Act, 2021 would not be able to protect the rights and interests of surrogate mothers and intended parents.
It has been feared that these shortcomings will contribute to the development of an illegal market in surrogacy services. Concerns have been raised regarding barriers such as age limitations and excluding queer couples, not aiding in the progression of society, as surrogacy should be recognized as a reproductive right available to all individuals irrespective of their place in the community. India is going through a revolutionary time whereby the citizen‟s thinking process is radically shifting from patriarchal norms to a more feministic ethos, hence there is skepticism about the current surrogacy legislation when it comes to the progression of Indian society.
3.1 What is Assisted Reproductive Technology?
ART is used to treat infertility. It includes fertility treatments that handle both a woman's egg and a man's sperm. It works by removing eggs from a woman's body and mixing them with sperm to make embryos. The embryos are then put back in the woman's body.
In Vitro fertilization (IVF) is the most common and effective type of ART.
ART procedures sometimes use donor eggs, donor sperm, or previously frozen embryos. It may also involve a surrogate carrier.
Along with the 2021 Act, the government has also passed the Assisted Reproductive Technology (Regulation) Act, 2021 to assist clinics and laboratories involved in reproductive technologies.
Both the Acts together work towards reproductive processes to treat infertility.
The National Assisted Reproductive Technology and Surrogacy Board having not been formed yet, has led to a significant amount of vagueness in regards to who is allowed to avail the surrogacy procedure, considering that a certificate needs to be obtained from the board. Only the facilities that are registered under the 2021 Act can be involved in the process of surrogacy.
Further, there are many sperm donors who are already undergoing medical procedures which, due to this Act coming into existence, might not be legal anymore, leading to either the violation of law if the procedure is not stopped or else putting the life of the donor at risk, if stopped. This has put doctors in a dilemma as to whether to stop the process in accordance with the law or to continue it against the law to prevent the health hazards to the donor undergoing the process. Thus, to overcome this lacuna, there is an urgent need for transitional provisions which are currently absent.
Legal Provisions:
The ART (Assisted Reproductive Technology Act) Regulation 2021 provides a system for the implementation of the law on surrogacy by setting up of the
National Assisted Reproductive Technology and Surrogacy Board.
The Act aims at the regulation and supervision of ART clinics and assisted reproductive technology banks, prevention of misuse, and safe and ethical practice of ART services.
Shortcomings:
o Exclusion of Unmarried and Hetrosexual Couples:
The Act excludes unmarried men, divorced men, widowed men, unmarried yet cohabiting heterosexual couples, trans persons and homosexual couples (whether married or cohabiting) from availing ART services.
This exclusion is relevant as the Surrogacy Act also excludes above said persons from taking recourse to surrogacy as a method of reproduction.
o Reduces the Reproductive Choices:
The Act is also limited to those commissioning couples who are infertile - those who have been unable to conceive after one year of unprotected coitus.
Thus, it is limited in its application and significantly reduces the reproductive choices of those excluded.
o Unregulated Prices:
The prices of the services are not regulated; this can certainly be remedied with simple directives.
4 SERIOUS CONCERNS
The 90 days‟ period, from the commencement of the Act, that is allotted by the government for obtaining the certificate of registration for clinics to practice surrogacy process or get involved in assisted reproductive, requires a proper infrastructure for not only effective implementation but also to prevent any injustice to the stakeholders due to the provisions under the Act. An agency for providing surrogates can be formed under
the Act for better and informed control over the surrogacy market and to prevent any exploitation of the surrogates.
There are inessential delays in the appointment of authorities which, in turn, is leading to a delay in the application of registration to the Board as well as for the application of certificates to avail the surrogacy services. The 2021 Act needs to become more inclusive of different sections of the society that have been left uncovered, and clarity over the appropriate authority is required for smooth, efficient, and hassle-free functioning.
The Parliament has taken a paternalistic view of the problem where, instead of eradicating the problems and exploitation faced due to the lack of regulations governing commercial surrogacy, it decided to make it illegal in its entirety and put restrictions on availing the surrogacy services on the pretext of the welfare and interest of the society. Commercial surrogacy is considered to be “renting of wombs‟,
„outsourced pregnancies‟ or „baby farms‟”
(as per the Supreme Court in Baby Manji Yamada) since there is money involved, apart from the basic medical and insurance covering expenses; on the contrary, it seems to have been forgotten that the money provided to the surrogate is for her to improve her standard of living and acts as her livelihood for a while.
5 CONCLUSION
While the Surrogacy (Regulation) Act, 2021 is the first legislation in India that controls the surrogacy practices, societal resistance against the process of surrogacy still prevails, especially in cases where the woman in the intending couple does not have a healthy egg and needs an egg donor for the surrogacy. The Act has raised various concerns not only in the minds of couples looking for surrogacy as an option to embrace parenthood, but also in the minds of medical practitioners due to the gaps in it. The progressive legislation, which aims to make surrogacy available to people unable to have children, has failed in its very nature to be progressive by being exclusionary and vague in its language, opening it to much deliberation and misinterpretation.
The law comes as a discriminatory mark against children with disabilities.
The Act considers having children with physical and special needs as childless. It further encourages considering surrogacy if the couple has a child with a life- threatening disorder. This clause directly violates the right of the children with the disability, thus denying them treatment with dignity. The Act is a clear slap on the face of the LGBTQ+ community and single fathers who want to have a child.
The LGBTQ+ community forms 15% of the total population and around 20% of the population going for surrogacy accounts for single parents. This law comes as a backlash to the other laws passed in favor of the LGBTQ+
community, like banning Section 377 and Right to Privacy. Moreover, by restricting the Act only to the cis-gender heterosexual couples and single mothers (widows and divorced), the Act infringes the right to parenthood for the LGBTQ+
population and single fathers, as defined under Article 21 by The Supreme Court of India.
To conclude, despite perceivably noble intentions and well-thought-out plans to protect surrogate mothers, it reinforces the typical patriarchal values of society by assuming the institution of heterosexual marriage as the basis for parenthood, which goes against the fundamental rights of the LGBTQ+
population, single men and women.
BIBLIOGRAPHY:
1. Aditya Mishra, Surrogacy in Indian Legal Context- A Bliss or Curse, volume no Manu 11, 42(2015).
2. Laws and Policies on Surrogacy, Springer
(accessed Mar. 11, 2022),
https://link.springer.com/book/10.1007/97 8-981-16-4349-1.
3. Surrogacy, Wikipedia, (Feb. 6, 2022), https://en.wikipedia.org/wiki/Surrogacy.
4. PRS India,
https://prsindia.org/billtrack/the-surrogacy- regulation-bill-2019 (last visited Mar. 5, 2022).
5. Alicia Gonzalez, Commercial Surrogacy In The United States, Georgetown University (Mar.
12, 2022, 3:20 PM),
https://www.law.georgetown.edu/gender- journal/wpcontent/uploads/sites/20/2019/
11/Alicia_Surrogacy-6.pdf.
6. Mohini Priya, Critical Analysis of Surrogacy (Regulation) Bill 2021 and Assisted Reproductive Technology (Regulation) Bill 2021, LIVE LAW (accessed Feb. 25, 2022), https://www.livelaw.in/columns/surrogacy-
regulation-bill-2021-srb-
assistedreproduction-technology-regulation- art-bill-2021-surrogacy-regulation-bill-2016- 193425.
7. Priya Shetty, India’s unregulated surrogacy industry, THE LANCET (Mar. 22, 2022), https://www.thelancet.com/journals/lancet/
article/PIIS0140-6736(12)61933- 3/fulltext#articleInformation
8. Smita Sharma, A Controversial Ban on Commercial Surrogacy Could Leave Women In India With Even Fewer Choices, TIME (accessed Mar. 18, 2022), https://time.com/6075971/commercial- surrogacy-ban-india/.
9. Western Ferlility Institute, https://www.westernfertility.com/uncategori
zed/guide-tochoosing-the-right-surrogate-for- your-family/( last visited Mar. 6, 2022).
10. Vasanti Jadva, Clare Murray, Emma Lycett, Fiona MacCallum, Susan Golombok, Surrogacy: the experiences of surrogate mothers, Human Reproduction Volume 18, Issue 10, 2196–2204(2003
11. Indira Sharma& Balram Pandit & Abhishek Pathak & Reet Sharma, 55(Suppl 2): S243–
S249 INDIAN J OF PSY5(2013)
12. Anil Malhotra, Draft surrogacy bill violates the fundamental right of people to choose modes of parenthood, THE INDIAN EXPRESS (accessed
Feb. 19, 2022),
https://indianexpress.com/article/opinion/c olumns/surrogacy-billbancommercial- 2998128/.
