Surrogacy Act

Why in the News?

Recently, the petitioners in the Delhi High Court questioned why marital status, age, or gender were the criteria for being allowed to commission or not commission surrogacy in India.

Key Points:

Provisions of Surrogacy Act

• Eligibility: A married couple can opt for surrogacy only on medical grounds. Additionally, the couple should not have a child of their own

  • The law defines a couple as a married Indian “man and woman” and also prescribes an age-criteria with the woman being in the age group of 23 to 50 years and the man between 26 to 55 years

• Gender Criteria: The law allows single women to resort to surrogacy, she should either be a widow or a divorcee, between the age of 35 to 45 years

  • Single men are, however, not eligible

• Any couple that has ‘proven infertility’ are candidates. The ‘intending couple’ as the Act calls them, will be eligible if they have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority

• Certificate of Essentiality Criteria: It will be issued if the couple fulfils three conditions: 

  • One, a certificate of infertility of one or both from a district medical board 

  • Two, an order of parentage and custody of the surrogate child passed by a Magistrate’s court 

  • Thirdly, insurance cover for the surrogate mother

• Eligibility Certificate:

  • An eligibility certificate mandates that the couple fulfil the following conditions: 

    • They should be Indian citizens who have been married for at least five years

    • The female must be between 23 to 50 years and the male, 26 to 55 years; they cannot have any surviving children (biological, adopted or surrogate)

    • However, this would not include a ‘child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness’

• Purposes for which surrogacy is Permitted: Surrogacy is permitted when it is: 

  •  For intending couples who suffer from proven infertility

  • Altruistic

  • Not for commercial purposes

  • Not for producing children for sale, prostitution or other forms of exploitation

  • For any condition or disease specified through regulations

Why is there a need for a Surrogacy Act in India?

• The Act sought to regulate the surrogacy part of a rather flourishing infertility industry in the country

• 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 — often to facilitate a marriage, enable children to get an education, or to provide for hospitalisation or surgery for someone in the family

• Therefore the need was felt to regulate surrogacy in India

Who can become a surrogate mother?

• Only a close relative of the couple can be a surrogate mother, one who is able to provide a medical fitness certificate

• She should have been married, with a child of her own, and must be between 25 and 35 years, but can be a surrogate mother only once

Regulating Surrogacy

• The Centre and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively, within 90 days of the passing of the Act

• This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications

• Further, surrogacy clinics need to apply for registration within 60 days of the appointment of the appropriate authority

• Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc

• These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh

What are the controversies behind the Act?

• Even at the Bill stage, there was some apprehension about the too restrictive regulations

• For instance, it does not allow single (never been married) women, or men, or gay couples to go in for surrogacy

What is ‘Surrogacy’?

• According to the Surrogacy Act, ‘surrogacy’ is a practice where a woman undertakes to give birth to a child for another couple and agrees to hand over the child to them after birth

•  It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease

• Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation

• Moreover, once the child is born, it will be deemed to be the biological child of the couple for all intents and purposes

• Only the medical expenses and insurance coverage is provided by the couple to the surrogate mother during pregnancy

• No other monetary consideration will be permitted

Types of Surrogacy:

• • Altruistic surrogacy: It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy 

  • Commercial surrogacy: It includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage