SURROGACY REGULATION IN INDIA – LawArticle

INTRODUCTION

Surrogacy is a process where a woman carries and gives birth to a child for another individua or couple who intend to become the child’s legal parents after birth. Advances in reproductive technology have made surrogacy a valuable option for those people who cannot have children because facing of infertility or certain medical conditions. However, surrogacy also raises few ethical, legal, and social issues, including the protection of surrogate mothers, preventing from exploitation as well as ensuring the rights of children born through surrogacy.

India was once a global hub for commercial surrogacy because medical treatment was more affordable, lower medical costs and many women were available to act as surrogate mothers. Therefore, while this created opportunities for intended parents, at a same time it also raised concerns about the exploitation of surrogate mother, lack of regulation, abandonment of children as well disputes over legal parentage. The Government of India to solve these problems introduced the Surrogacy (Regulation) Act, 2021 and the Assisted Reproductive Technology (Regulation) Act, 2021. These laws provide a clear legal framework for regulating surrogacy practices.

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LEGAL FRAMEWORK GOVERNING SURROGACY IN INDIA

The Surrogacy (Regulation) Act, 2021, is the main Act which is regulated surrogacy in India. This Act came into effect on 25 January 2022. This Act main purpose to ensure that practice of surrogacy in an ethical manner, prohibit commercial surrogacy, as well as this Act also provide protection the legal rights and interests of surrogate mother, intending parents and children.

Rules for fertility clinics and assisted reproductive technologies, such as vitro fertilization (IVF), are laid down under the Assisted Reproductive Technology (Regulation) Act, 2021. As a result, standards for fertility clinics are established, proper registration is required, as well provide guidelines for medical procedures are provides under this law.

The provision is also made under the legislation for the establishment of National and State Surrogacy Boards, which are used to advise the government, supervise implementation, and ensure compliance with the law.

TYPES OF SURROGACIES

Surrogacy generally exists in two forms that are:

1. Altruistic Surrogacy

In India altruistic surrogacy is only from is permitted. Under this arrangement, the surrogate mother does not receive any monetary compensation except for reimbursement of medical expenses, insurance coverage, as well as other prescribed costs which is directly related to the pregnancy.

1. Commercial Surrogacy

In commercial surrogacy involves payment beyond medical expenses and insurance. In India the Surrogacy (Regulation) Act, 2021, this Act completely prohibits commercial surrogacy due to concerns about exploitation, trafficking, and the commercialization of women’s reproductive capabilities.

ELIGIBILITY CONDITIONS FOR INTENDED PARENTS

The Act laid down that individuals intending to have a child through the surrogacy process must meet the special eligibility requirements mention under the Act and obtain the following:

1. A certificate of medical indication for surrogacy.
2. A certificate of essentiality.
3. A certificate of eligibility from the appropriate authority.

The intended parents must also show that surrogacy process is medically necessary and is not based solely on personal preference.

ELIGIBILITY CONDITIONS FOR A SURROGATE MOTHER

To protect surrogate mothers, the law lays down strict requirements. A surrogate mother must:

1. Be an adult woman who fulfils the prescribed eligibility criteria,
2. Be of sound mind, and medically as well as psychologically fit for surrogacy,
3. Provide written informed consent,
4. Act as a surrogate only once during her lifetime,
5. Receive insurance coverage for a specified period to protect against pregnancy-related complications.

The surrogate mother has the right to receive proper medical care, privacy, dignity and protection from exploitation.

RIGHTS OF THE SURROGATE MOTHER

Under the Surrogacy (Regulation) Act, 2021, provide several important rights of surrogate mothers, including:

1. Right to Medical Care: Under this Act the surrogate mother has entitles the right of healthcare before, during, and after pregnancy, and the intending parents must bear all related medical expenses.
2. Right to Insurance Coverage: The intending parents must provide insurance that covers pregnancy-related complications for the specified period which is prescribed under this law.
3. Right to Informed Consent: A woman cannot act as a surrogate unless she gives voluntary and informed written consent and she must have fully understands the medical procedures, risks, and legal consequences which is involved.
4. Protection Against Exploitation: The law prohibition of commercial surrogacy to protect women from financial exploitation, coercion, and trafficking.

Right to Privacy and Dignity: To ensuring her privacy and dignity of surrogate mother, medical information and personal details must be treated confidentially throughout the process of surrogacy.

RIGHTS OF THE CHILD BORN THROUGH SURROGACY

The law safeguards the rights and interests of children born through lawful surrogacy arrangements.

1. The child is considered the biological child of the intending parents for all legal purposes.
2. Under this Act the child is entitled to the same rights as a naturally born child, including the rights to inheritance and maintenance.
3. The child born through lawful surrogacy must not be abandoned on the grounds of disability, gender, or any medical condition.
4. The intending parents bear legal responsibility for the child’s care and upbringing.

These provision main aim to safeguard rights, enjoy equal legal recognition and protection for the children born through surrogacy procedure.

RIGHTS AND RESPONSIBILITIES OF INTENDED PARENTS

The intended parents have several legal duties under the Act, they must:

1. Bear all medical expenses which is relating to the pregnancy under surrogacy process.
2. Intended parents must be provide mandatory insurance coverage.
3. Accept as a legal parent of the child, which is born through surrogacy procedure, immediately after birth.
4. Intended parents have responsibility to provide proper care and maintenance of the child.
5. Intended parents needed to be complete with all statutory procedures and obtain required certificates before commencing surrogacy.

If the intended parents fail to comply with the legal requirements may attract penalties under this Act.

PROHIBITED PRACTICES

Under the Surrogacy (Regulation) Act, 2021, strictly prohibits several practices, including:

1. Commercial surrogacy as well as advertising surrogacy services.
2. Sale or purchase of embryos or gametes for commercial purposes.
3. Under this provision the exploitation of surrogate mothers is prohibited.
4. The abandonment or rejection of children born through surrogacy is not permitted.
5. Sex selection before or after conception is not allowed.
6. Conducting surrogacy procedures through unregistered clinics is prohibited under the law.

Under this Act, it ensures ethical reproductive practices and prevent the misuse of assisted reproductive technologies.

OFFENCES AND PENALTIES

The Act lays down strict punishments for any violations. Including if any persons engaging in commercial surrogacy, exploitation of surrogate mothers, advertising surrogacy services, or violating any other provisions may face legal consequences or imprisonment and substantial fines. Registered clinics also violating regulatory requirements and may also be subject to penalties, suspension, or cancellation of registration.

CHALLENGES IN THE CURRENT LEGAL FRAMEWORK

Although the legislation marks significant progress toward ethical regulation, various challenges remain.

Firstly, the complete restricts on commercial surrogacy has been criticized for restricting reproductive choices as well as reducing opportunities for women who voluntarily choose to act as surrogates for financial compensation.

Secondly, the strict eligibility requirements may prevent many individuals, including certain categories of intending parents who require reproductive assistance, from accessing surrogacy services.

Third, administrative procedures requirement of multiple certificates and approvals may lead to delays the process of obtaining surrogacy services.

Fourth, authorities are face challenges in implementation due to the need for effective monitoring of fertility clinics and prevention of illegal surrogacy arrangements.

Finally, the challenge lies in balancing reproductive freedom with the need to protect individuals from exploitation.

CONCLUSION

In India, to regulating surrogacy, the Surrogacy (Regulation) Act, 2021, play an important role.  It replaces the earlier unregulated commercial system with a proper legal framework. The Act protects surrogate mothers and children born through surrogacy as well as provide their rights and protections, also lays down the responsibilities of intending parents, as well as prevents commercial exploitation of surrogacy. Although some legal and ethical challenges have still remained, proper implementation and regular review are necessary to ensure that surrogacy remains safe, transparent, and in accordance with human rights and constitutional values.