India

Surrogacy has become an increasingly popular method for many individuals and couples to build their families. However, the legal landscape surrounding surrogacy in India has undergone significant changes in recent years. Understanding these laws is crucial for anyone considering surrogacy in India. This blog provides an in-depth look at the current surrogacy laws in India, their implications, and what prospective parents need to know.

Historical Background

Surrogacy in India was largely unregulated until the early 2000s. The lack of regulation led to India becoming a hub for commercial surrogacy, attracting many international clients due to the lower costs and availability of surrogate mothers. However, concerns about the exploitation of surrogate mothers, ethical issues, and legal complexities prompted the Indian government to take action.

The Surrogacy (Regulation) Bill, 2019

To address these issues, the Indian government introduced the Surrogacy (Regulation) Bill, 2019. The bill aimed to regulate surrogacy practices in India and ensure the rights and welfare of all parties involved. Here are some key provisions of the bill:

1. Prohibition of Commercial Surrogacy:
   • The bill bans commercial surrogacy, which involves monetary compensation beyond medical expenses and insurance for the surrogate mother. This move aims to prevent the exploitation of surrogate mothers.
2. Permitting Altruistic Surrogacy:
   • Only altruistic surrogacy is allowed, where the surrogate mother does not receive any monetary compensation except for medical expenses and insurance. This type of surrogacy is typically arranged among close relatives.
3. Eligibility Criteria for Intended Parents:
   • The bill sets strict eligibility criteria for intended parents. Only Indian citizens who have been married for at least five years and are unable to conceive a child naturally are eligible. The couple must be within the age group of 23 to 50 years for women and 26 to 55 years for men.
4. Eligibility Criteria for Surrogate Mothers:
   • Surrogate mothers must be married, have at least one biological child, and be within the age group of 25 to 35 years. A woman can act as a surrogate mother only once in her lifetime.
5. Establishment of Regulatory Authorities:
   • The bill mandates the establishment of national and state surrogacy boards to regulate and oversee surrogacy practices. These authorities are responsible for granting eligibility certificates to intended parents and surrogate mothers.
6. Protection of Surrogate Mothers:
   • The bill includes provisions to protect the rights and welfare of surrogate mothers, including the right to adequate medical care and insurance coverage.

Legal Process for Surrogacy in India

1. Application and Approval:
   • Prospective parents must apply for surrogacy through a recognized surrogacy clinic. They must obtain a certificate of essentiality and a certificate of eligibility from the appropriate authorities.
2. Surrogacy Agreement:
   • A legal surrogacy agreement must be signed between the intended parents and the surrogate mother. The agreement outlines the responsibilities, rights, and obligations of both parties.
3. Medical Procedures:
   • Once the legal formalities are completed, the medical procedures for surrogacy, including IVF (In Vitro Fertilization), can begin.
4. Birth and Legal Parentage:
   • After the birth of the child, the intended parents must obtain a legal order declaring them as the legal parents of the child. The surrogate mother relinquishes all parental rights to the child.

Challenges and Criticisms

While the Surrogacy (Regulation) Bill, 2019 aims to address ethical concerns and protect surrogate mothers, it has faced criticism on several fronts:

1. Restrictive Eligibility Criteria:
   • The strict eligibility criteria exclude single individuals, same-sex couples, and foreign nationals from availing surrogacy services in India. This has led to criticism about the bill being exclusionary.
2. Altruistic Surrogacy Limitations:
   • The emphasis on altruistic surrogacy may limit the availability of surrogate mothers, as it relies on women being willing to undergo surrogacy without financial compensation.
3. Implementation and Enforcement:
   • Ensuring compliance with the new regulations and effectively monitoring surrogacy practices pose significant challenges for the authorities.

Conclusion

Surrogacy laws in India have evolved to address ethical, legal, and social concerns. The Surrogacy (Regulation) Bill, 2019 marks a significant shift in how surrogacy is practiced and regulated in the country. While the bill aims to protect the rights and welfare of surrogate mothers and ensure ethical practices, it also imposes strict regulations that limit the availability of surrogacy as an option for many.

Prospective parents considering surrogacy in India must navigate this complex legal landscape and ensure they meet all the requirements set forth by the law. Consulting with legal experts and recognized surrogacy clinics is essential to ensure a smooth and legally compliant surrogacy journey.