Surrogacy in India

Surrogacy is a type of third-party reproduction where a female agrees to carry a pregnancy for the expected parent(s) who can't conceive for clinical reasons. There are two types of surrogacy: traditional surrogacy and gestational surrogacy. Traditional surrogacy utilises the surrogate mother's egg to conceive the baby. At the same time, gestational surrogacy is performed by transferring embryos made through IVF with eggs from the expected mother or a donor. Surrogacy in India and Indian surrogates turned out to be progressively mainstream among expected parents in industrialised countries in view of the somewhat low expenses and simple access offered by Indian surrogacy agencies.

The principal reasons for surrogacy include: absence of the uterus, uterine irregularities, either congenital or acquired, repeated IVF failures, clinical reasons for which pregnancy is contraindicated, single males, and same-sex male couples. There are likewise different examples in which surrogacy could be suggested, including the circumstance in which the female can't conceive because of objective reasons, like a high risk of impaired fetal development etc.

In this article, we will learn about the surrogacy bill for UPSC, commercial surrogacy in India and surrogacy rules in India. 

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Surrogacy Laws in India

Here, we will learn about the “The Surrogacy (Regulation) Bill, 2019”. After reading this article, all the questions on the surrogacy bill for UPSC can also be answered. Let us learn about the surrogacy rules in India in detail.

• The Surrogacy (Regulation) Bill, 2019, was presented by the Minister of Health and Family Welfare, Dr. Harsh Vardhan, in Lok Sabha on July 15, 2019. The Bill characterizes surrogacy as a practice where a lady gives birth to a child for an intending couple with the goal to surrender the child after the delivery to the expecting couple.

• Regulation of surrogacy: The Bill prohibits commercial surrogacy in India yet permits altruistic surrogacy. Altruistic surrogacy includes no financial remuneration to the surrogate mother in India other than the clinical expenses and insurance coverage during the pregnancy. Commercial surrogacy in India includes surrogacy, or its connected procedures attempted for financial advantage or reward surpassing the essential clinical costs and insurance coverage. 

• Purposes for which surrogacy is allowed: Surrogacy is permitted when it is: (i) for intending couples who experience the proven infertility; (ii) altruistic; (iii) not intended for commercial purposes; (iv) not for reproducing children with the intention of selling them, prostitution or different types of abuse; and (v) for any illness or infection determined through guidelines. 

• Eligibility criteria for the intending couple: The aiming couple ought to have a 'certificate of essentiality' and a 'certificate of eligibility given by the appropriate authority. 

• A certificate of essentiality will be issued only when these conditions are fulfilled: (i) a declaration of proven infertility of one of the two individuals from the intending couple from a District Medical Board; (ii) a request for parentage and authority of the surrogate child approved by a Magistrate's court; and (iii) insurance coverage for a period of 16 months covering post-pregnancy delivery complications for the surrogate. 

• The certificate of eligibility to the proposing couple is issued on fulfilment of the following conditions: (I) the couple being Indian residents and married for at least five years or more; (ii) the age of wife should be between 23 to 50 years, and the age of husband should be between 26 to 55 years of age; (iii) they don't have any surviving kid (biological, surrogate or adopted); this would exclude a kid who is physically or mentally retarded or experiences life-threatening disorder or fatal illness; and (iv) different conditions that guidelines might determine. 

• Eligibility criteria for surrogate mother in India are: (I) a direct relative of the intending couple; (ii) a married woman having her very own child; (iii) is of 25 to 35 years of age; (iv) a surrogate just a single time in the course of her life; and (v) have a testament of medical and psychological fitness for surrogacy. Further, the surrogate mother in India can't give her own gametes for surrogacy. 

• Who is the Appropriate authority? The central and state governments appoint one or more appropriate authorities within 90 days of the Bill turning into an Act. The roles and functions of the appropriate authority include; (i) granting, suspending or cancelling the registration of surrogacy centres; (ii) enforcing guidelines for surrogacy clinics; (iii) examining and making a move against breach of the provisions of the Bill; (iv) suggesting modifications to the rules and guidelines. 

• Parentage and abortion of surrogate child: A child conceived out of a surrogacy system will be considered to be the biological offspring of the intending couple. An abortion of the surrogate offspring requires the written consent of the surrogate mother and the authorisation of the appropriate authority. This authorisation should be agreeable with the Medical Termination of Pregnancy Act, 1971. Further, the surrogate mother in India will have an alternative to back out from surrogacy before the embryo is embedded in her womb. 

• The Offences and penalties: The offences under the Surrogacy (Regulation) Bill, 2019 include: (I) undertaking or publicising commercial surrogacy; (ii) taking advantage of the surrogate mother; (iii) forsaking, taking advantage of or abandoning a surrogate child; and (iv) selling or bringing in human embryo or gametes for surrogacy. The penalty and punishment for such offences is imprisonment as long as ten years and a fine of up to 10 lakh rupees. 

Surrogacy News India 2020

In a vital development, the Union cabinet on 26th February 2020 approved the new Surrogacy (Regulation) Bill 2020, permitting any ‘willing’ lady to be a surrogate. The Bill took a backseat because of the COVID-19 pandemic but is anticipated to be introduced as the 2021 Bill within the Lower House of the Indian Parliament in its forthcoming session. Although the Bill may be a vital improvement to the Surrogacy (Regulation) Bill 2019, it continues to adopt a needs-based approach instead of a rights-based approach, thereby failing to grant women the autonomy they deserve.

The Surrogacy (Regulation) Bill, 2020, aims to prohibit commercial surrogacy and allow altruistic surrogacy. Although commercial surrogacy in India is prohibited, including the sale of human embryos and gametes, under certain conditions, Indian married couples, Indian couples and single Indian women are allowed to practice ethical surrogacy. The law allows voluntary women to become surrogate mothers and benefits widows, divorced women and infertile Indian couples.

History of Surrogacy in India

In 2002, commercial surrogacy or informally 'Rent a Womb' practice was legalised in the Republic of India. It had been done to push medical tourism in India, and after this decision was taken, India became "the hub of surrogacy". The main reason for this is the lower price in India than in the U.S. It cost approx $100,000 and as well as the absence of strict rules and regulations. As per the CII report 2012, the dimensions of India' surrogacy business was $2 billion a year. And it was calculable that over 3,000 fertility clinics were engaged in this across the country.

The unregulated business of surrogacy raised issues like unethical practices, and because of this, the middlemen and industrial agencies profited the most. There was the exploitation of surrogate mothers, abandonment of youngsters born out of surrogacy, rackets like organ trade, embryo import, etc going on everywhere. That's why legislation to control surrogacy within the country came into force.