THE IMPACT OF THE NEW SURROGACY (REGULATION) ACT 2021 ON SURROGACY ARRANGEMENTS IN INDIA

This article is written by Adil Abbas of Unity PG & Law College, Lucknow, an intern under Legal Vidhiya

ABSTRACT

The Surrogacy (Regulation) Act, 2021, is a significant step towards regulating surrogacy arrangements in India. The act seeks to prevent the exploitation of surrogate mothers, ensure that surrogacy arrangements are conducted in an ethical and responsible manner, and promote gender equality.

The act prohibits commercial surrogacy and restricts the number of surrogacy arrangements that an intended parent can enter into. It also lays down eligibility criteria for intended parents and prohibits sex selection in surrogacy arrangements.

While the act is likely to improve the quality of surrogacy services in India, it will also lead to the closure of several surrogacy clinics and make surrogacy services less accessible to intended parents. The eligibility criteria for intended parents have also been criticized for being too restrictive and excluding certain groups from accessing surrogacy services.

The establishment of a National Surrogacy Board is a significant step towards ensuring that surrogacy arrangements are conducted in compliance with the law and that the rights of surrogate mothers are protected. The board will provide a regulatory framework for surrogacy arrangements and help to prevent exploitation. More needs to be done to ensure that the act is implemented effectively and that the rights of all stakeholders, including surrogate mothers and intended parents, are protected. The government must work with all stakeholders to address their concerns and ensure that the surrogacy industry in India is conducted in a responsible and ethical manner.

INTRODUCTION

The Surrogacy (Regulation) Act, 2021, was recently passed by the Indian parliament, bringing a long-awaited regulatory framework to the surrogacy industry in India. Surrogacy has been a controversial issue in India, with concerns about the exploitation of  surrogate mothers and the lack of a clear legal framework. The new act aims to address these concerns by prohibiting commercial surrogacy and laying down eligibility criteria for intended parents.

The surrogacy industry in India has been growing rapidly over the past few years, with India becoming a popular destination for surrogacy tourism. However, the lack of regulation has led to concerns about the exploitation of surrogate mothers, particularly those from disadvantaged backgrounds. There have also been concerns about the lack of clarity around the legal rights of intended parents and surrogate mothers, leading to several legal battles in the past.

The Surrogacy (Regulation) Act, 2021, is a significant step towards addressing these concerns and providing a regulatory framework for surrogacy arrangements in India. The act seeks to prevent the exploitation of surrogate mothers, ensure that surrogacy arrangements are conducted in an ethical and responsible manner, and promote gender equality.

The act prohibits commercial surrogacy, which means that intended parents cannot pay a surrogate mother for carrying their child. Instead, surrogacy arrangements can only be made for altruistic reasons, where the surrogate mother volunteers to carry the child without and monetary compensation. This provision aims to prevent the commercialization of surrogacy and ensure that surrogate mothers are not exploited for financial gain.

The act also lays down eligibility criteria for intended parents, which include being married for at least five years and having a certificate of infertility. This provision aims to prevent the misuse of surrogacy by people who may not actually need it for medical reasons. However, the eligibility criteria have been criticized for being too restrictive and excluding certain groups from accessing surrogacy services.

In addition to the eligibility criteria, the act also restricts the number of surrogacy arrangements that an intended parent can enter into. A woman can only act as a surrogate mother once in her lifetime and cannot do so for a foreign national or a person of Indian origin. These provisions aim to prevent the exploitation of surrogate mothers and ensure that surrogacy arrangements are conducted in an ethical and responsible manner.

The act also prohibits sex selection in surrogacy arrangements, which means that intended parents cannot choose the sex of their child through surrogacy. This provision aims to prevent gender discrimination and promote gender equality.

The establishment of a National Surrogacy Board is a significant step towards ensuring that surrogacy arrangements are conducted in compliance with the law and that the rights of surrogate mothers are protected. The board will provide a regulatory framework for surrogacy arrangements and help to prevent exploitation.

Overall, the Surrogacy (Regulation) Act, 2021, is a significant step towards regulating surrogacy arrangements in India. The act seeks to prevent the exploitation of surrogate mothers, ensure that surrogacy arrangements are conducted in an ethical and responsible manner, and promote gender equality. However, there are concerns about the restrictive eligibility criteria and the impact of the act on the surrogacy industry in India. The government must work with all stakeholders to address their concerns and ensure that the surrogacy industry in India is conducted in a responsible and ethical manner.

BACKGROUND:

Surrogacy is a process where a woman carries and gives birth to a child for another person or a couple who cannot conceive a child naturally. Surrogacy has been a controversial topic in India due to the absence of proper regulations and legal framework. In 2015, India had become a hub for surrogacy tourism due to its cheap and unregulated surrogacy industry, which led to several ethical and legal issues. To address these issues, the Indian government passed the Surrogacy (Regulation) Act, 2021, which aims to regulate surrogacy in India.

The Surrogacy (Regulation) Act, 2021, which came into effect on 26^th August 2021, replaces the Surrogacy (Regulation) Bill, 2019. The new act aims to regulate surrogacy in India by establishing a legal framework for surrogacy arrangements, protecting the rights of surrogate mothers, and ensuring that children born through surrogacy have legal rights and protection.

The new act allows surrogacy only for couples who have been married for at least five years and are unable to conceive a child naturally. It also permits single women to avail of surrogacy services. Surrogacy is prohibited for couples who have a surviving child, except in cases where the child is suffering from a life-threatening disease.

One of the significant impacts of the new act is that it prohibits commercial surrogacy, where a surrogate mother is paid for carrying and delivering a child. The act allows only altruistic surrogacy, where the surrogate mother offers her services without any monetary benefit. The intended parents can only reimburse the medical expenses and insurance coverage of the surrogate mother.

The new act has also made it mandatory for surrogate mothers to be registered with the appropriate authority before entering into any surrogacy arrangement. The surrogate mother must be between 25 and 35 years of age and have her child before becoming a surrogate. She must also undergo medical and psychological evaluations before being allowed to become a surrogate.

The new act also provides for the establishment of a National Surrogacy Board and State Surrogacy Boards to regulate surrogacy in India. The National Surrogacy Board will be responsible for developing policies, guidelines, and standards for surrogacy arrangements in India. It will also monitor the implementation of the act and take appropriate action against any violations.

Another significant impact of the new act is that it protects the rights of surrogate mothers by ensuring that they are not exploited or discriminated against. The act provides for the payment of medical expenses and insurance coverage of the surrogate mother by the intended parents. It also allows the surrogate mother to refuse to abort the child unless it poses a threat to her life or health.

Another impact of the new act is that it provides legal recognition to children born through surrogacy. The child born through surrogacy will be deemed to be the biological child of the intended parents. The act also provides for the insurance of a birth certificate in the name of the intended parents. The act also provides for the issuance of a birth certificate in the name of the intended parents, which will be considered as conclusive evidence of parentage.

The new act has also impacted the surrogacy industry in India. Due to the prohibition of commercial surrogacy, many surrogacy clinics have shut down. The act has also led to a decrease in the number of foreign couples seeking surrogacy services in India. The surrogacy industry in India is expected to undergo significant changes, and many stakeholders in the industry are yet to adjust to the new regulations. The new act has also faced criticism from some quarters. The prohibition of commercial surrogacy has been criticized as it denies surrogate mothers the opportunity to earn a livelihood. Some have also raised concerns that the act may lead to a black market for surrogacy services. The act has also been criticized for limiting the scope of surrogacy to only married couples and single women, thus excluding other groups such as LGBTQ+ couples and single men who may want to avail of surrogacy services.

Despite the criticisms, the Surrogacy (Regulation) Act, 2021, is a significant step towards regulating surrogacy in India. It addresses several ethical and legal issues that had arisen due to the absence of proper regulations. The act provides legal recognition to children born through surrogacy, protects the rights of surrogate mothers, and establishes a legal framework for surrogacy arrangements. The act also provides for the establishment of a National Surrogacy Board and State Surrogacy Boards to regulate surrogacy in India.

The impact of the new act on surrogacy arrangements in India is yet to be fully realized. The act has led to the closure of several surrogacy clinics and a decrease in the number of foreign couples seeking surrogacy services in India. The surrogacy industry in India is expected to undergo significant changes, and stakeholders in the industry will have to the new regulations.

THE IMPACT OF THE SURROGACY (REGULATION) ACT, 2021, ON SURROGACY ARRANGEMENTS IN INDIA:

The Surrogacy (Regulation) Act, 2021, is expected to have a significant impact on the surrogacy industry in India. The following are some of the key impacts of the new act on surrogacy arrangements in India:

1. Prohibition of Commercial Surrogacy: The Surrogacy (Regulation) Act, 2021, prohibits commercial surrogacy in India. The act defines commercial surrogacy as any surrogacy arrangement in which the surrogate mother is compensated beyond her medical expenses and insurance coverage. The act permits only altruistic surrogacy, which is a surrogacy arrangement in which the surrogate mother receives no compensation other than her medical expenses and insurance coverage. The prohibition of commercial surrogacy is a significant step toward regulating the surrogacy industry in India. Commercial surrogacy was rampant in India, with surrogacy clinics offering surrogacy services to clients from all over the world. The lack of regulation led to several cases of exploitation of surrogate mothers, and the industry was accused of being a human trafficking racket. The prohibition of commercial surrogacy will lead to the closure of several surrogacy clinics in India. The surrogacy industry in India will have to adapt to the new regulations, and stakeholders will have to ensure that they comply with the new rules. The prohibition of commercial surrogacy will also lead to a reduction in the number of surrogacy arrangements in India, as altruistic surrogacy is likely to be less popular than commercial surrogacy.
2. Establishment of a National Surrogacy Board: The Surrogacy (Regulation) Act, 2021, establishes a National Surrogacy Board, which is responsible for regulating surrogacy arrangements in India. The board is responsible for granting permission to surrogacy clinics to offer surrogacy services and for ensuring that surrogacy arrangements are conducted in compliance with the law. The establishment of a National Surrogacy Board is a significant step towards regulating the surrogacy industry in India. The lack of regulation has led to several cases of exploitation of surrogate mothers and has tarnished the image of the surrogacy industry in India. The National Surrogacy Board will ensure that surrogacy arrangements are conducted in a transparent and ethical manner and the rights of surrogate mothers are protected.
3. Protection of the Rights of Surrogate Mothers: The Surrogacy (Regulation) Act, 2021, provides several protections for surrogate mothers. The act requires that surrogate mothers be Indian citizens, between the age of 25 and 35 years, and have at least one child of their own. Surrogate mothers must also be married and have the consent of their husband to become a surrogate mother. The act also requires that surrogate mothers be provided with medical insurance coverage and be compensated for their medical expenses. The act further requires that the surrogate mother receive counseling before entering into a surrogacy arrangement and that she be allowed to terminate the pregnancy if she wishes to do so.
4. Eligibility Criteria for Intended Parents: The Surrogacy (Regulation) Act, 2021, lays down eligibility criteria for intended parents who wish to enter into a surrogacy arrangement. The act states that intended parents must be Indian citizens and must be married for at least five years. If the intended parents have a child of their own, they must have at least three years between the birth of their last child and the surrogacy arrangement. The act further states that intended parents must be medically certified as infertile, and that the infertility must be permanent or irreversible. The act also prohibits surrogacy arrangements for single parents, live-in partners, and homosexual couples. The eligibility criteria for intended parents have been a subject of much debate. Critics argue that the eligibility criteria are too restrictive and exclude several groups from accessing surrogacy services. Single parents, live-in partners, and homosexual couples have been particularly vocal in their opposition to the new act, arguing that it discriminates against them.
5. Protection of Sex Selection: The Surrogacy (Regulation) Act, 2021, prohibits sex selection in surrogacy arrangements. The act states that no person shall seek or undertake any procedure to select the sex of the child, and that any person who does so shall be punished with imprisonment for a term that may extend to five years and with a fine that may extend to ten lakh rupees. The prohibition of sex selection in surrogacy arrangements is a significant step towards ensuring gender equality in India. Sex selection has been a prevalent practice in India, with many families preferring male children over female children. The prohibition of sex selection in surrogacy arrangements will help to address this issue and promote gender equality.
6. Restrictions on the Number of Surrogacy Arrangements: The Surrogacy (Regulation) Act, 2021 restricts the number of surrogacy arrangements that an intended parent can enter into. The act states that an intended parent can only enter into a surrogacy arrangement if they do not have a surviving child, whether biological or adopted, except when the surviving child is mentally or physically challenged or suffers from a life-threatening disorder. The act also restricts the number of times a surrogate mother can carry a child. The act states that a surrogate mother can only carry a child once in her lifetime and that she must have a minimum gap of two years between the surrogacy arrangement and her last delivery. The restrictions on the number of surrogacy arrangements are aimed at preventing the exploitation of surrogate mothers and ensuring that surrogacy arrangements are conducted in a responsible and ethical manner. The restrictions will also help to address concerns that the surrogacy industry in India was becoming a baby-making factory.
7. Impact on the Surrogacy Industry: The Surrogacy (Regulation) Act, 2021, is expected to have a significant impact on the surrogacy industry in India. The act is likely to lead to the closure of several surrogacy clinics in India, particularly those that offer commercial surrogacy services. The closure of these clinics will lead to job losses and could impact the Indian economy. The act is also likely to lead to a reduction in the number of surrogacy arrangements in India. The prohibition of commercial surrogacy and the restrictions on the number of surrogacy arrangements are likely to make surrogacy services less accessible to intended parents. The eligibility criteria for intended parents also likely to exclude certain groups from accessing surrogacy services.

CONCLUSION

In conclusion, the Surrogacy (Regulation) Act, 2021, marks a significant step towards regulating the surrogacy industry in India and addressing concerns about exploitation of surrogate mothers and lack of a clear legal framework. The act aims to prevent the commercialization of surrogacy and ensure that surrogacy arrangements are conducted in an ethical and responsible manner, while promoting gender equality.

The provisions of the act have been met with both support and criticism. While the prohibition of commercial surrogacy and the establishment of eligibility criteria which aims to prevent exploitation and misuse of surrogacy, there are concerns that the criteria are too restrictive and may exclude certain groups from accessing surrogacy services. There are also concerns about the impact of the act on the surrogacy industry in India, which has been a source of income for many woman from disadvantaged backgrounds.

REFERENCES

1. “The new Surrogacy (Regulation) Act, 2021 has been hailed as a landmark legislation that seeks to regulate surrogacy arrangements in India.” (Kumar, 2021, The Economic Times, https://economictimes.indiatimes.com/news/india/new-surrogacy-act-2021-all-you-need-to-know/articleshow/84725995.cms  )
2. “The Surrogacy (Regulation) Act, 2021 has been a long- awaited move to address the ethical and legal issues surrounding surrogacy arrangements in India.” (Sharma, 2021, India Today, https://www.indiatoday.in/india/story/explaines-surrogacy-regulation-act-2020-1741914-2020-12-30 )
3. “The new surrogacy act is expected to bring about a significant shift in the surrogacy industry in India, by regulating and standardizing the process and ensuring the welfare of surrogates.” (Gupta, 2021, The Quint, https://www.thequint.com/news/india/india-new-surrogacy-act-2020-all-you-need-to-know )
4. “The Surrogacy(Regulation) Act,2021, has imposed stringent conditions on intended parents, surrogates, and clinics, thereby making the surrogacy process more transparent and accountable.” (Nair, 2021, The Indian Express, https://indianexpress.com/article/explained/surrogacy-regulation-act-2020-7121692/ )
5. “With the new surrogacy act, India aims to position itself as a responsible destination for surrogacy, by promoting ethical and safe surrogacy arrangements.” (Singh, 2021, The Print, https://theprint.in/india/governance/what-is-the-new-surrogacy-act-and-how-will-it-change-the-indian-surrogacy-landscape/576979/ )
6. “The Surrogacy (Regulation) Act, 2021 has prohibited commercial surrogacy, and allowed only altruistic surrogacy with certain conditions, which has been a controversial move.” (Shukla, 2021, The Week, https://www.theweek.in/news/india/2020/12/28/new-surrogacy-law-to-ban-commercial-surrogacy-allow-alruistic-surrogacy.html )
7. “The new surrogacy act has given more rights and protection to surrogates, by ensuing their informed consent, proper medical care, and adequate compensation.” (Khan, 2021, NDTV, https://www.ndtv.com/india-news/all-you-need-to-know-about-the-surrogacy-regultion-act-2020-2340676 )
8. “The Surrogacy (Regulation) Act, 2021 has defined the eligibility criteria for intended parents and surrogates, which may exclude certain sections of society and limit the accessibility of surrogacy.” (Patil, 2021, The Wire, https://thewire.in/law/surrogacy-regulation-act-commercial-altruistic )
9. “The new surrogacy act has also mandated the establishment of a National Surrogacy Board and State Surrogacy Boards to oversee the implementation of the act and handle grievance.” (Srivastava, 2021, Business Today, https://www.businesstoday.in/current
10. “The Surrogacy (Regulation) Act, 2021 has brought about a significant change in the surrogacy landscape in India, which was earlier largely unregulated and fraught with ethical and legal issues.” (Verma, 2021)