SURROGACY AND ASSISTED REPRODUCTIVE TECHNOLOGIES (ART) IN INDIA
The legal landscape around surrogacy and assisted reproductive technologies (ART) in India has been evolving, with the introduction of the Surrogacy (Regulation) Act and the Assisted Reproductive Technologies (Regulation) Act in 2021.
These laws focus on regulating surrogacy and ART procedures, with a particular emphasis on banning commercial surrogacy and enforcing altruistic surrogacy models.
However, these regulations raise ethical and constitutional concerns regarding compensation and the exploitation of surrogates.
What is Surrogacy?
Surrogacy is an agreement in which a woman, called the surrogate mother, carries a baby for someone else who cannot conceive or carry a pregnancy.
Types of Surrogacy:
- Traditional Surrogacy: The surrogate uses her own egg, fertilized by the intended father’s sperm. The baby is biologically related to both the surrogate and the intended father.
- Gestational Surrogacy: The surrogate carries an embryo created through IVF (in vitro fertilization) using the intended parents’ or donors’ sperm and egg. The surrogate has no biological connection to the child.
Surrogacy Arrangements
- Altruistic Surrogacy: In this type, the surrogate is not paid beyond medical expenses and insurance. The surrogate helps out of compassion rather than financial gain.
- Commercial Surrogacy: Here, the surrogate is paid for her service in addition to medical expenses. This arrangement is now banned under Indian law due to concerns about exploitation.
Provisions of the Surrogacy and ART Regulations
- Ban on Commercial Surrogacy: The Surrogacy (Regulation) Act prohibits any payment to surrogates except for medical expenses and insurance. The surrogate can only offer her service once in her lifetime.
- Eligibility for Surrogacy: Intended parents must meet certain criteria such as being married for at least five years, having no living biological or adopted child, and proving infertility or serious health conditions.
- Surrogate Criteria: The surrogate must be a close relative of the intended parents, married, and must have at least one child of her own. Her age must be between 25-35 years, and she can only be a surrogate once.
Constitutional and Ethical Concerns
Exploitation of Surrogates:
- While commercial surrogacy is banned to prevent exploitation, the lack of compensation in altruistic surrogacy could lead to informal, unregulated practices.
- Poorer women who relied on commercial surrogacy for income are left without financial support, potentially increasing their vulnerability.
Lack of Fair Compensation:
- The ban on payments beyond medical costs ignores the physical and emotional labor involved in surrogacy.
- Pregnancy is a health-intensive process that requires compensation beyond basic expenses.
- Many argue that surrogates should be paid for the services they provide, which go beyond mere medical care.
Ethical Debate on Payment:
- One concern is that paying surrogates may be seen as child-selling.
- However, others argue that compensating surrogates for their labor does not equate to selling children but recognizes the service they provide.
Legislative Review and Compensation Recommendations
Parliamentary Committees’ Recommendations:
- Before the enactment of the Surrogacy Act, two committees reviewed the bill. They recommended reasonable compensation for surrogates, emphasizing that pregnancy involves significant labor and health risks, which should be financially acknowledged.
- Compensation should cover not only medical expenses but also lost wages, psychological support, and post-pregnancy care.
The Transition to Altruistic Surrogacy
Challenges:
- The shift from a commercial to altruistic model has led to several issues.
- Many surrogacy arrangements have gone underground, giving rise to illegal practices.
- Additionally, intended parents are struggling to find willing surrogates due to the restrictions.
Need for Compensation:
- To address these challenges, it is crucial to provide surrogates with fair compensation while maintaining ethical standards.
- This ensures that surrogates are not exploited, and intended parents can access surrogacy without difficulty.
Provisions Related to Parental Rights and Termination of Pregnancy
- Parental Status: Once the child is born, the intended parents are legally recognized as the biological parents. The surrogate has no rights over the child.
- Abortion: Abortion of the fetus requires the consent of both the surrogate and the appropriate authorities, in line with the Medical Termination of Pregnancy Act.
Other Provisions Related to Surrogacy in India
Permissibility:
- Under the 2021 Surrogacy Act, surrogacy is allowed only for altruistic reasons.
- It is restricted to couples with proven infertility or severe health conditions.
- Commercial surrogacy is banned to prevent exploitation.
Eligibility Requirements for Intended Parents:
- The couple must be legally married for at least five years.
- The wife should be aged between 25-50, and the husband between 26-55.
- They cannot have a living biological or adopted child unless the child suffers from a disability or life-threatening disorder.
Surrogate Mother’s Criteria:
- The surrogate must be a close relative of the intended parents, married, and have at least one child of her own.
- She must be between 25 and 35 years old and can only act as a surrogate once in her life.
Conclusion:
The Surrogacy (Regulation) Act, while aimed at preventing exploitation, may unintentionally create more challenges for surrogates and intended parents. The prohibition on compensation leaves many surrogates without fair recognition for their labor.
The Supreme Court’s rulings on this matter will play a critical role in shaping the future of surrogacy laws in India, particularly in ensuring a balance between ethical regulations and fair treatment for surrogates.
Mains Question:
Q. Critically examine the ethical and constitutional concerns surrounding the Surrogacy (Regulation) Act, 2021, particularly focusing on the prohibition of commercial surrogacy. (150 WORDS)