Source – The Hindu

Introduction

Recently, the Supreme Court has questioned whether a single unmarried woman having a child by surrogacy is an accepted norm in Indian society.

• The aforesaid question was raised on a writ petition filed by a practicing lawyer, who argued that she has the right to reproduction and motherhood even without entering into a marriage.

What were the Court’s Observations?

• A bench of Justices BV Nagarathna and Ujjal Bhuyan observed that a single woman bearing a child is an exception and not a rule in Indian society.
• A single woman bearing a child is outside marriage and is not the accepted norm of Indian society.
• It was further held that the Parliament had recognized the potential of a widow or a divorcee to have a child through surrogacy.
• The Court eventually decided to examine the issue and sought the Central government's response in the matter.

What is Surrogacy?

• Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s).
• A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries and gives birth to a child for another person or couple (intended parent/s).
• Surrogacy, which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy is often referred to as Altruistic surrogacy.
• Surrogacy which is undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage is termed as Commercial surrogacy.

What are the Legal Provisions in Relation to Surrogacy in India?

• Surrogacy (Regulation) Act, 2021:
  • Under the Surrogacy (Regulation) Act, 2021, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.
  • The intended couple shall be a legally married Indian man and woman, the man shall be between the ages of 26-55 years and the woman shall be between the ages of 25-50 years, and shall not have any previous biological, adopted, or surrogate child.
  • It also bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs.
  • The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child.
• Surrogacy (Regulation) Rules, 2022:
  • Surrogacy (Regulation) Rules, 2022 which provides the form and manner for registration and fee for a surrogacy clinic and the requirement, and qualification for persons employed, at a registered surrogacy clinic.
  • Surrogacy clinics shall have at least one gynecologist, one anesthetist, one embryologist and one counselor.
  • The intending woman or couple must purchase a general health insurance coverage in favor of surrogate mother for a period of thirty six months from an insurance company or an agent for an amount which is sufficient enough to cover all expenses for all complications arising out of pregnancy and also covering post- partum delivery complications.
  • The number of attempts of any surrogacy procedure on the surrogate mother shall not be more than three times.
  • The consent of a surrogate mother shall be as specified in Form 2.
• The Assisted Reproductive Technology (Regulation) Act, 2021:
  • This Act provides a system for the implementation of the law on surrogacy by setting up of the National Assisted Reproductive Technology and Surrogacy Board.
  • It aims at the regulation and supervision of ART clinics and assisted reproductive technology banks, prevention of misuse, and safe and ethical practice of ART services.

Conclusion

India can establish a robust legal framework for surrogacy by focusing on inclusivity, ethics, and medical advancements, which will respect individuals' rights, ensures the well-being of all parties involved, and supports those seeking to start families through assisted reproductive technologies.