The Centre has opposed before the Delhi HC a petition challenging certain provisions of the surrogacy laws, including the Assisted Reproductive Technology (Regulation) Act, 2021, and the Surrogacy (Regulation) Act, 2021.

What is the case?

• The provisions challenged includes the exclusion of a single man and a married woman having a child from the benefit of surrogacy as a reproductive choice.
• It challenged the ban on commercial surrogacy.
• In their plea, the petitioners have stated that commercial surrogacy is the only option available to them.

Invoking Article 21

• The personal decision of a single person about the birth of a baby through surrogacy, that is, the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
• Thus, the right affecting a decision to bear or beget a child through surrogacy cannot be taken away, the petition said.

What rules say?

• Under the Surrogacy (Regulation) Act, 2021, a married couple can opt for surrogacy only on medical grounds.
• The law defines a couple as a married Indian “man and woman” and also prescribes an age-criteria with the woman being in the age of 23 years to 50 years and the man between 26 years to 55 years.
• The couple should not have a child of their own.
• Though the law allows single women to resort to surrogacy, she has to be a widow or a divorcee between the age of 35 and 45 years.
• The law does not allow single men to go for surrogacy.

Distinct features of the Surrogacy (Regulation) Act, 2021

• Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
• Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.
• Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.
• Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

Eligibility criteria for surrogate mother:

• To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:

1. A close relative of the intending couple;
2. A married woman having a child of her own;
3. 25 to 35 years old;
4. A surrogate only once in her lifetime; and
5. Possess a certificate of medical and psychological fitness for surrogacy.

• Further, the surrogate mother cannot provide her own gametes for surrogacy.

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