190 ANALYSIS OF THE SURROGACY REGULATION ACT 2021
Dr. Nitu Tiwari
Professor, M.B. Khalsa, Law College
Abstract - 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. The Act prohibits commercial surrogacy, but allows altruistic surrogacy.
Keywords: Surrogacy (Regulation), Altruistic surrogacy, commercial surrogacy
1 INTRODUCTION
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 Act, though, leaves certain necessary questions unanswered, apart from various gaps which we will discuss below. I seek to highlight the need for the Act to become more inclusive and clear by making amendments wherever required to act in the best interests of the people. The primary criticisms against the Act are regarding who is allowed and not allowed to avail surrogacy services, the exclusion of non-binary gender, the prohibition of commercial surrogacy, the need to include traditional surrogacy, and the difficulty that medical practitioners might face because of the vagueness in the law.
Surrogacy as a practice might have become popular in India in the recent past, but its roots can be traced back to our mythological past. Lord Krishna‘s brother, Balaram, who was also the seventh child of Devaki and Vasudeva, was transferred to the womb of Rohini, (Vasudeva‘s first wife) to protect her from Devaki‘s brother, Kansa. Herein, Rohini acted as a surrogate to the intended parents (Devaki and Vasudev).
Thus, Indian mythology has looked at
surrogacy as a way to create or protect families, and not a procedure to be frowned upon.
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.
1.1 The Act’s Beneficiaries
The Act restricts the people who can avail these services to only two categories.
1. An ‗intending couple‘ – The Act defines ‗couple‘ as an Indian man and woman above the age of 21 and 18 respectively, who are legally married, as per Section 2(h) of the Act. An ‗intending couple‘ is defined in Section 2(r) of the Act as a couple who intend to become parents through surrogacy and there is medical evidence that necessitates gestational surrogacy. The married couple should be between the age of 23 to 50 for females and 26 to 55 for males.
191 2. An ‗intending woman‘ – An intending
woman as defined in Section 2(s) of the Act is a ‗widow‘ or a ‗divorcee‘
who is between 35 to 45 years of age and intends to avail this service.
Herein, the intended woman as well as the intending couple needs a certification of recommendation as per Section 4(ii)(a) from the National Assisted Reproductive Technology and Surrogacy Board constituted under Section 17 of the Act. Apart from the above-mentioned categories, no other person shall be allowed to avail the surrogacy services under this Act.
This excludes a chunk of society like unmarried females who wish to experience motherhood and are unable to conceive. The irony here lies in the fact that despite this law ostensibly embracing modernity, it results in maintaining the orthodox taboo against embracing motherhood without marriage. An unmarried pregnant woman is not allowed to have an abortion under the Medical Termination of Pregnancy Act, 1971, which punishes them for having a pregnancy due to sexual relations by forcing them to have the child, while herein when an unmarried woman wants to have a child but is unable to bear, she is not allowed to avail surrogacy services.
A couple, according to the 2021 Act, is identified as a married ‗Indian man and woman‘ of ages above 21 and 18, respectively, leaving behind any man and woman in a live-in relationship intending to avail these services. The Act promotes the institution of marriage by limiting the meaning of couple to the definition in Section 2(h). The Act also results in the exclusion of couples who might be unfit medically or dealing with chronic diseases that can result in the unborn baby being more prone to such diseases. Although Section 4(ii)(e) does allow surrogacy in conditions where the National Assisted Reproductive Technology and Surrogacy Board specifies a condition or a disease, the vagueness of the conditions or diseases under which it is allowed persists in the Act and is subject to the opinion of the Board.
2 WHAT IS THE SURROGACY (REGULATION) ACT, 2021?
Provisions: Under the Surrogacy (Regulation) Act, 2021, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.
It also bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs.
The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child.
Challenges:
Exploitation of the Surrogate and the Child:
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.
Reinforces Patriarchal Norms:
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.
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.
Overall, this step
indirectly denies children to the couples choosing to embrace parenthood.
Emotional Complications:
In altruistic surrogacy, 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
192 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.
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.
Overall, a third party helps both the intended couple and the surrogate mother navigate through the complex process, which may not be possible in the case of altruistic surrogacy.
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:
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.
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.
Unregulated Prices:
The prices of the services are not regulated; this can certainly be remedied with simple directives.
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 3 CONCLUSION
As India is one of the major hubs of these practices, the Act is certainly a step in the right direction. There, however, needs to be a dynamic oversight to ensure that the law keeps up with rapidly evolving technology, demands of morality and societal changes.
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
193 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.
REFERENCES
1. Anu Aneja and Shubhangi Vaidya, Embodying Motherhood: Perspective of Contemporary India 140-141 (1st edition, published in 18 July, 2016).
Anil Malhotra and Ranjit Malhotra, Surrogacy in India — A Law in the Making Revisited, Universal Law Publishing 2016, p. 52.
2. Black‘s Law Dictionary, Bryan A. Garner, 8th Edn. 2004, p. 4529.
3. Baby Manji Yamada v. Union of India, (2008) 13 SCC 518.
4. Shubhangi Priya, Evaluating Surrogacy Legislation in India, Social & Political Research Foundation.
5. M. Cooper, K. Vafadari, and M. Heida, Current Issues and Immerging Trends in Medical Tourism, 1st ed. IGI Global, USA, 2015, ch.10, p. 139.
6. L. Carangelo, The Adoption and Donor Conception Fact book, 1st ed.Access Press, California, ch.3, p. 147, 2015.
7. C. Surrogacy, LTD. (August 2016). Parents, available programs for intended parents.Gestatetional.Surrogacy.[Online].Avai lable:http://www.circlesurrogacy.com/paren ts/programs.
8. Pragu Fertility Center. (August 2016). ICSI - Intracytoplasmic Sperm Injection. [Online].
Available:
http://www.pragueivf.com/en/art/icsi/
9. O. B. A. V. D. Akker. (July 7, 2006).
Psychosocial aspects of surrogate motherhood. Oxford Journals Medicine and Health Update. [Online] Available:
http://humupd.oxfordjournals.org/content/
13/1/53.full
10. D. Puzzo and B. P. Psicoterapia. (2016).
Surrogate Mother, Psychological Aspects.
[Online] Available: http://www.psicologi- rimini.it/?IDC=2&ID=135
11. Abbey,L. J. Halman, and F.M. Andrews,
"Psychosocial, treatment, and demographic predictors of the stress associated with infertility," vol. 57, pp. 122–128, 1992.
12. Aberg and F. Mitelman. Surrogacy, Mumbai Indian surrogates, Rent-a-womb, Outsourcing Surrogacy in India, Surrogacy bills in India. (2015). [Online]. Available:
https://surrogacymumbai.wordpress.com/s urrogacy-bill-india/
13. Surrogacy in Canada online articles, Risks to Surrogate Mothers. (2001-2016). [Online].
Available:
https://surrogacy.ca/resources/articles/53- risks-to-surrogate-mothers.html
14. Modern Family surrogacy Center, Christian Surrogacy. (2016). [Online]. Available:
http://www.modernfamilysurrogacy.com/pa ge/christian_surrogacy
15. Shodhganga, Ch5, Objectives and Hypothesis of Research Problem. [Online].
Available:http://shodhganga.inflibnet.ac.in:8 080/jspi/bitstream/10603/43044/15/15cha pter%20no%205.pdf
16. K. Aramesh, "Surrogacy is prohibited in Islam, medical ethics and history of medicine research center," Journal of Medical Ethics, vol. 35, no. 5, 2009.
