The Delhi High Court issued a notice to the Union government on a petition challenging some provisions of the Surrogacy (Regulation) Act and the Assisted Reproductive Technology (Regulation) Act.

Issues raised by the petition

• Currently, the laws does not allow single men to have child through surrogacy.
• Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
• Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
• Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
• The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method, their petition said.

Basis of the Petition

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

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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[Burning Issue] Surrogacy in India

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