Understanding the natural concept of surrogacy in India, as a generic term, is a legal arrangement between a woman, also known as the surrogate and the intended parents who are willing to have a child. In modern times in India, this arrangement has become common and acceptable in society.
Many people opt for surrogacy if the mother or the woman who intends to have a child cannot conceive one for a variety of medical or personal reasons and more so, having a baby is likely a threat to the life of a mother. Surrogacy is a blessing for parents or people who intend to have a baby but are unable to, which makes it even more important to have proper regulations on this matter.
Surrogacy is a legal phenomenon in India in the form of Gestational Surrogacy and as a result bearing a baby for such reasons as prescribed by law and under medical provisions in accordance to the legal frame works in the country.
Therefore, traditionally, the eggs of the surrogate mother are used meanwhile today, egg donation is not necessary since the egg of the surrogate mother is used. The intrauterine insemination method is used in traditional surrogacy making it is a simple method where the surrogate need not go through many fertility treatments. The intended mother need not take any treatment or undergo the egg retrieval process since her eggs are never utilized accordingly.
RELEVANT PROVISIONS OF THE SURROGATE (REGULATION) ACT 2021
Initial intention of the legislators of the surrogacy (Regulation) Act 2021 was to provide an avenue specifically to the married women to consider by law bearing children to other persons with medical complications and are unable to bear their own children for the same reason. Consequently, the Bill was passed in early December of 2021 which later came into law and highly considered, till date, a strong legal framework for the same intention and application in the country. It has some of the key features as seen below:-
All relevant and capable clinics providing the surrogacy treatment and facilities need to be registered under this Act and people practicing in those clinics need to qualify as per the criteria given in this bill accordingly without fail. Each and every facility that performs surrogacy treatments must apply for registration within sixty days after the competent authority’s appointment and consequently, every three years, registration must be renewed as per the regulations in this Act.
All such practices as commercial surrogacy is prohibited in any form by any surrogacy clinic, gynaecologist, embryologist or other medical practitioner and therefore, only altruistic surrogacy is permissible under the 2021 Act entirely.
The intending couple say, the couple wanting to have the baby must be legally married in line with the laws of India and this regulation does not apply to single and unmarried women in India. The age of the female should be between 25-50 years and that of the male should be 26-55 years accordingly. Besides, another important condition is that they shouldn’t be having any other adopted or conceived child through surrogacy or naturally as the Act is intended to serve purposes limited to helping adult women with medical complications and unable to bear their own children as well as having no option for acquiring such children but only through surrogacy.
The mother providing this service that is the surrogate mother needs to be between the ages of 35-45 years to scientifically, guarantee the ability to bear a child and any woman cannot be a surrogate mother more than once in her entire lifetime as per this particular law within India. The National or State Assisted Reproductive Technology and Surrogacy Board shall provide a ‘Certificate of Essentiality or Infertility’ to an intended couple who has a medical need for surrogacy in India.
The surrogate mother must be informed of all known negative effects and after-effects of the operation and thus the consent of the surrogate must be fair and of free will. In addition, the surrogate mother must provide written informed permission in the language she understands to avoid frauds and misrepresentation.
Besides, according to this Bill, there would be a Registry being installed and that shall be called the National Assisted Reproductive Technology that would handle the registration of the clinic providing the surrogacy treatment as per the requirements involved.
Furthermore, according to this Act, any couple who takes a baby through commercial surrogacy shall be held liable to pay a fine of up to 50,000 rupees as well as imprisonment of up to 5 years. Moreover, in cases where the same offense is committed multiple times, the fine shall go up to 1 lakh and the jail term to 10 years.
Besides, any individual, organization or clinic found to be involved in the exploitation of surrogate mothers or children born via surrogacy shall face a maximum penalty of ten years in jail and a fine of Rs ten lakhs accordingly.
LEGATEES OF THIS ACT
The Act is restricted to only two categories of people that is, the intending couple who are legally married and according to the laws of India and that have a certificate of infertility can use this facility. Besides, the couple needs to be between the age of 25 to 50 for the females and 26 to 55 years for the males accordingly.
And accordingly, the other category is the intended woman who is either a widow or a divorcee between the ages of 35-45 years can opt for this treatment who has no child of her own due to certain reasons recognised by law in India.
This however, eliminates a segment of the population such as unmarried women who want to be mothers but are unable to conceive babies for themselves. The irony here is that, although purportedly embracing modernity, this legislation maintains the conventional taboo against childbirth without marriage in India.
A woman is not allowed to use surrogacy services in case she wants to have the child but is not able to bear it due to many reasons.
Not only is the term couple been used only for a married couple of the legal marriage ages but leaves out any man and woman who are in a live-in relationship to avail of this services equally. This promotes the institution of marriage in India and fulfilling the requirements attached thereto.
Furthermore, this Act also leaves behind those couples where a partner or both of them suffer from chronic diseases and there are chances for them to transfer the same to their baby, during birth or gestation period altogether.
The status of the unmarried and single women in India as per the provisions of the Surrogacy (Regulation) Act and via several judicial pronouncements is not catered for altogether. It very important in the manner of observing the very nature and intention of the initial legislation per se, it caters only to adult women who are either married but bears no child, or divorced women who also does not have any child of their own either by natural reproduction or adoption within the territory of India.
Unmarried and single women suggestively cannot be included in this legislation for reasons such as maintaining the highly recognised practice of not bearing children before marriage in India. This is also there are highly probability of such unmarried and single women to abuse this surrogacy regulation to bear a child or children for monetary benefits to fulfil their own personal interests which is never the intention of the impugned legislation altogether.
Furthermore, it also makes no logical sense for a single and unmarried woman to claim for her demand for a child when she is not willing to enter legal marriage which guarantees her the legality for having such a child. It is equally very important to maintain the social and cultural practice as well as maintaining the morality of the society of restricting young single and unmarried women bearing children without official marriage which is highly damaging the moral perspectives of the elderly Citizens of this country.
Therefore, the judicial pronouncements and the interpretation of the surrogacy (Regulation) Act 2021has been satisfactory and for such meagre reasons cannot be considered discriminatory in nature against other women in India and this is just and fair for our nation.