Surrogacy is a process whereby one woman bears and gives birth to a child, for a couple or another woman, with the intention of handing over such child to the couple or the woman after birth. Such child born out of surrogacy procedure would be deemed to be a biological child of the intending couple or the intending woman and shall be entitled to all the rights and privileges as are available to a child born from a natural pregnancy under any law for the time being in force.
India at present with the enactment and notification of the Surrogacy (Regulation) Act, 2021 and the accompanying Surrogacy (Regulation) Rules 2022 has a codified law governing surrogacy. However, with the functional implementation of the Act and Rules made therein, several difficulties and challenges being faced by the intending couple have come to surface, and there are pending challenges to the provisions of the Act.
Several amendments have also been introduced by the Central Government to remedy the shortcomings in the governing legislation, thereby indicative of the fact that the Law regarding Surrogacy in India is one which is nascent and evolving at the present stage.
Prohibition of Commercial Surrogacy
The Act criminalises commercial surrogacy altogether with a punishment of imprisonment for a term which may extend to five years and a fine which may extend to five lakh rupees for the first count of offence. However, any subsequent offence is punishable by imprisonment which may extend to ten years and fine which may extend to 10 lakh rupees.
The Act only permits altruistic surrogacy which essentially means that there are no charges, expenses, fees, renumeration or monetary incentive that is payable to the surrogate mother and only the medical expenses and the insurance are given to the surrogate mother.
Eligibility for Commissioning Surrogacy
The Act has stipulated strict eligibility for the intending couple or a single woman who wish to commission surrogacy.
- Legally married couple of Indian origin wherein the male partner should be between 26 to 55 years and female partner should be between 23 to 50 years.
- In case of single woman, she must be between 35 to 45 years of age.
- The proposed surrogate mother must either be married, a widow or divorcee.
- There should be a medical indication i.e. condition which disallows or impedes in any manner, the bearing of child through natural pregnancy, either in favour of one or both members of the intending couple or intending woman which should necessitate gestational surrogacy.
Couples with Surviving Biological Children Allowed only as an Exception
As per the governing Scheme of the Surrogacy Act and Regulations made therein, the intending couple must not have any surviving child biologically or through adoption or through surrogacy except for a child who is mentally or physically disabled in any manner or suffers from life threatening disorder or fatal illness for which there is no permanent cure.
Medical Indication Necessary for Surrogacy
The Act further mandates that there must be a medical indication necessitating gestational surrogacy for any one of the pair or both and a certificate of recommendation in this regard must be obtained from the designated authority in this regard.
Surrogacy Permissible Through Registered Clinics
The Act provides that surrogacy or surrogacy procedures may only be conducted at clinics which have been registered under the provisions of the Act, and only upon provision of certification of recommendation from the designated authorities in the form and manner as prescribed.
Use of Only One Donor Gamete Permissible
Previously, the governing regulations prohibited the use of donor gametes for commissioning surrogacy by the intending Couple, however, after a round of Writ Petitions being preferred before the Supreme Court of India, an amendment was introduced in the procedure governing surrogacy which banned couples from using donor gametes and the said rule was altered to state that the intending couple may use a donor gamete so long as one of the gamete is from the intending couple.
The amendment allowing use of donor gametes was critical in the play of the Act itself, as in the absence of the same it virtually rendered couples in need of surrogacy on account of medical complications in the lurches.
| Note: One of the gametes used in commissioning surrogacy must be from the intending couple and use of two donor gametes is prohibited. |
Needless to state, at present the use of a donor gamete by an intending single mother is not permissible under the law applicable for the time being in force.
Who Can be A Surrogate Mother
- Women between 25 to 35 years of age
- Must be married, widowed or divorced.
- Must be having a child of her own and must not have previously been a surrogate.
- Must have obtained a certificate of medical and psychological fitness for proceeding with the surrogacy.
- A consent in writing by the surrogate mother in the prescribed format to undergo the procedures must be taken by intending couple. The consent must be in the language that is easily understandable to her.
Medical and Legal Procedure Involved
Only clinics registered under the Surrogacy (Regulation) Act, 2021 are permitted to conduct or help in any manner in conducting any activity relating to surrogacy and surrogacy procedures.
- The intending couple/woman is required to make an application concerning the parentage and custody of the child to be born through surrogacy and obtain such order passed by a court of the Magistrate of the first class or above.
- An insurance coverage of such amount and manner for 36 months which covers postnatal delivery problems is required to be obtained in favour of surrogate mother.
- The surrogacy procedure cannot be conducted on the surrogate mother more than three times.
- Certificate of medical and psychological fitness for the surrogacy procedure is required for the surrogate mother.
- The consent of the surrogate mother is required to be obtained in the format as prescribed under the relevant rules.
- The intending couple or woman are prohibited from abandoning the child born through surrogacy whether within India or outside for any reason whatsoever including but not limited to any genetic defect, birth defect, any other medical condition, weather subsequently developed, sex of the child or conception of more than one baby.
- The surrogate child is deemed to be a biological child of the intending couple and in effect shall be entitled to all such rights and privileges available to a natural child under any law that is in force.
Surrogacy for Indians Based Abroad
Earlier, provisions permitting surrogacy for Non-Resident Indians, OCI Card Holders or Foreign Citizens were largely regulated by the guidelines issued by the Ministry of Home Affairs and the procedure was laid down by individual embassies. However, the Ministry of Home Affairs vide notification dated 03.11.2015 forbade the commissioning of surrogacy to any foreign nationals including OCI Card Holders.
However, with the passing of the Surrogacy (Regulation) Act, 2021, OCI Card Holders have been included in the class of persons of Indian Origin that are permitted to commission surrogacy in India. However, all other class of Indian Origin persons have not been included in the Act therefore continue to be disbarred.
At present, all other classes of Indian Origin couples that do not hold a valid OCI Card are essentially disqualified from undergoing Surrogacy in India.
Maternity Leave for Government Servants Commissioning Surrogacy
In a recent development, the Central Government through the Ministry of Personnel, Public Grievances and Pension has issued a notification permitting the intending mother-to be to avail a maternity leave of 180 days in cases wherein either or both of the intending couple are government servants.
The notification has come as a respite for commissioning couples since there was no provision permitting maternity leave, thereby leaving them in rather perplexing situation to cope with the needs of the children born through surrogacy.
Legal Remedies Available: Approaching The Court for Permitting Surrogacy
For the removal of any difficulty which disallows intending couples from proceeding with surrogacy and related procedures under the governing regulations, they have a remedy under law to approach the Constitutional Courts and demonstrate any injustice or inequality being faced by them and seek an appropriate relief on grounds of equity.
High Courts and Supreme Court of India are vested with power under law to pass appropriate directions upon the concerned authorities granting relief to the intending couple in demonstrable situations and could be reached by an aggrieved person against any wrongful act.
The law governing Surrogacy has witnessed significant and monumental changes and amendments, all of which have been subsequently introduced upon the provisions being challenged before the Constitutional Courts on grounds of being ultra vires of the fundamental rights granted under the Constitution of India.
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