Surrogacy has emerged as a viable solution for couples facing infertility or medical complications that prevent them from conceiving naturally. The Surrogacy Act of 2021 is a landmark legislation that aims to provide a legal framework to regulate and promote surrogacy in a manner that protects the rights and interests of all parties involved. Yet through the legal discourse, we come across instances that the act creates a roadblock to several genuine parents and hence doesn't serve the intent behind the legislation i.e., to give an intending couple the happiness of a child.
Introduction
Infertility is a growing concern for both men and women. It can be due to various factors like age, lifestyle, genetics, etc. Though there exist methods like IVF which are opted for, yet if the same fails what comes to assistance is Surrogacy. In India, the Altruistic nature of Surrogacy is permitted by the legislation of 2021 and has emerged as a way to gain the happiness of parenthood and is no longer supposed to be an impossible affair especially when both men and women acknowledge infertility as a medical issue. According to the Surrogacy Regulation Act of 2021, surrogacy is defined as the practice of a woman carrying and giving birth to a child to later give the child to the intended couple. Through this Article let's delve into the procedure laid down for couples to undergo Surrogacy and its shortcomings.
Regulation of surrogacy and surrogacy procedures
Section 4 of the Surrogacy (Regulation) Act, 20211 talks about the regulation of surrogacy and the surrogacy procedure. It lays the need to obtain certifications and only then the procedure can be performed in government-authorized clinics. Only then the application as according to FORM 10 can be filed by the intending couple for availing Surrogacy.
For the procedure, the following certifications are necessary and only then the surrogacy procedures shall be conducted.
Certificate of Essentiality: It is granted as per FORM 11 to the intended couple if the conditions under Section 4(iii)(a) are satisfied, they are as follows.
- Certificate of recommendation showing that the couple has a medical indication that necessitates gestational surrogacy, for which a certificate of Medical Indication As per FORM 12 is present with the intended couple from the District Medical Board. The form to be filled for the same is FORM 1.
- Order concerning parentage and surrogate child custody passed by the Magistrate of first-class courts. This is granted as per FORM 13.
- Insurance coverage in Favor of surrogate mothers for a period of 36 months covering postpartum delivery complications from an insurance company recognized by the Insurance Regulatory and Development Authority Act, 1999.
Certificate of eligibility: It is provided to the surrogate mother and intending mother as per Section4(iii)(b) and (c):
To Intending Mother, if:
- Must be legally married within the age limit of 23-50 in the case of females and 26-55 in the case of males.
- Must not have a surviving child conceived biologically, through adoption, or through surrogacy earlier.
To surrogate mother, if:
- The surrogate mother shall have an eligibility certificate issued by the appropriate authority as no woman other than a married woman having her child and is between the age of 25 to 35 years on the date of implantation, shall be a surrogate mother. This is provided as per FORM 17 B.
- She must not provide her gametes
- Should possess a medical and psychological fitness certificate from a registered medical practitioner. This is granted as per FORM 14.
In the case the request for surrogacy is denied the same can be appealed under section 14 within thirty days from the date of receipt of the communication relating to the order of rejection of application, suspension, or cancellation of registration passed by the appropriate authority. The form for appeal is FORM 6.
Shortcomings of The Surrogacy Regulation Act, 2021
Although the legislation was created to protect the rights of surrogate mothers and children born through surrogacy, it was unable to completely resolve the issue, leaving several loopholes that ultimately led to questions about the statute.
Starting with the regulating legislation, which allows altruistic surrogacy but fully prohibits commercial surrogacy. According to the argument, this kind of restriction is put in place to safeguard the surrogate mother's rights and forbid the commercialization of the kid. Through commercial surrogacy, it was determined that the intended parents intended to place a value on the child through the fees they would pay to the surrogate mother.
Additionally, it was mentioned that the use of commercial surrogacy increases a child's vulnerability to crimes against him, such as child trafficking. From a different angle, it was also evident how frequently couples infringe upon the surrogate mother's rights by failing to fully compensate her.
Since it is erroneously believed that outlawing this type of surrogacy will help prevent crime, this calls into question the act's flaws and raises the possibility of crimes against the child and surrogate mother. Commercial surrogacy would continue to be conducted, but illegally, and it would encourage corruption and unfair surrogacy practices.
Marriage is an important requirement under the statute, which is the second flaw. Since the law makes it crystal clear that to be a surrogate mother, a woman must be married and have her child. This act's clause also serves to promote society's viewpoint that single mothers' lives should not be made better or encouraged. As stated in the legislation, a woman who may be related to the intended parents and may be willing to serve as their surrogate will not be eligible for the certificate if she is single and does not have children of her own.
The existence of this clause also reduces the likelihood that a couple may consider surrogacy as a substitute method of childbearing. The primary justification for the act's creation was to ensure the protection and welfare of the involved children as well as the surrogate mother. However, as the act's provisions are seen, this justification is no longer valid because neither the act's provisions for surrogacy clinics nor its surrogate mother are protected anywhere in it.
Although the law stipulates that the surrogate mother's decision should only be made with her free consent, the fact that in Indian society a woman does not have full independence concerning making her own decisions cannot be avoided.
The significance and impact of the act that was intended to be achieved have been diminished as a result of the act's change in character from child and surrogate mother to clinics and certificates. As it is also maintained, the act's provisions appear to be more regulatory in nature than imposing. which showed the ineffectiveness of the law.
Corrective measures
The act has several shortcomings but is very important legislation in today's society. The act should uplift a complete ban on commercial surrogacy as the child gets an opportunity to have a child whereas a woman who might need money can earn it. Putting a complete ban on any practice is not an ideal solution to regulate or control malpractice. The act should also not mandate a surrogate mother to be married and have her child as it should not be a criterion to determine the capability of a surrogate mother. There should only be a criterion for the mental and physical health of a surrogate mother and the environment she will be living in.
Case Laws
In a writ petition before the Karnataka High Court namely H Siddaraju & ANR v. Union of India & others2 The petitioners challenged the validity of Section 2(1)(zg) and Section 4(iii)(c)(I) of the Surrogacy (Regulation) Act, 2021, which states that surrogate mothers should be "genetically related" to the intended couple. Previously the couple was faced with another question: the intending father's age was more than 55 yrs. To which the court had previously laid the triple test of:
- Genetic: Since the father is now 57 yrs it would be necessary to test for determination of the health of the sperm so that the child born out of the embryo is not born with any disorder or infirm.
- Physical: The couple must have the physical capacity to handle the child i.e. they must be able to take care of the child and hence not abandon the child on the ground that they are themselves infirm to handle the child.
- Economical: The affidavits of both the intending couple should be filed before the Board/appropriate authority about their assets and liabilities which would become helpful for the Board/appropriate authority to decide the economic capacity of the intending couple.
And the court while passing an order about Section 2(1)(zg) held that such a provision defeats the very altruistic nature of Surrogacy and runs contrary to the principle behind formulating the Act. Thus conclusively the bench directed the State Surrogacy Board/Appropriate Authority/Prescribed Authority to consider the couple's application for grant of an eligibility certificate, on the triple tests – genetic; physical, and economical.
Moreso similarly in Arun Muthuvel v. Union of India3 before the Apex Court, while making submissions on behalf of the center, the ASG submitted that one of the recommendations made by the National Board which was followed has made clear, that a child gotten through surrogacy needed to only be related to both the intending parents, and not the surrogate mother. Yet what is left to be contended is whether is there notification to the said effect by the government or not.
Recently, in Pooja Avinash Nandurkar and Anr. v. Union of India and Ors.4, the petitioners challenged the Central Government notification dated March 14, 2023, amending Clause 1(d) of Form 2 under Rule 7 of the Surrogacy (Regulation) Rules, 2022, which states that the surrogacy procedure is limited to the use of gametes from only the intending couple undergoing surrogacy, with no donor gamete allowed.
The petitioners have sought the writ of certiorari in quashing the impugned notification. They have also sought the Stay of the said notification as well. The court has issued notice for the same.
Conclusion
The Surrogacy Act 2021 is a progressive piece of law that protects intended parents' rights to choose surrogacy while emphasizing the welfare of all parties. The act aims to stop exploitative practices and ensure that surrogacy agreements are carried out ethically and transparently by regulating the surrogacy procedure. It serves as a pillar of support, supporting ethical surrogacy procedures and enabling individuals and couples to realize their parental aspirations as surrogacy continues to gain popularity as a different route to motherhood. But it has certain loopholes too. Therefore, the act needs to be amended to include commercial surrogacy while regulating it and preventing the exploitation of surrogate mothers.
Footnotes
1. https://dhr.gov.in/sites/default/files/Surrogacy%20Regulation%20ACT%202021.pdf
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
