A person has approached the Delhi High Court to question why marital status, age or gender should be the criteria for prohibiting someone from commissioning a surrogacy.

Why in news?

• Under the Surrogacy (Regulation) Act, 2021 a married couple can opt for surrogacy only on medical grounds.
• The petitioner have challenged in the court the surrogacy law and the Assisted Reproductive Technology (Regulation) Act, 2021 which provides a regulatory framework for surrogacy.

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.

Also read:

[Burning Issue] Surrogacy in India

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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.

Also read

[Burning Issue] Surrogacy in India

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Context

• In a recent report, a Select Committee of Parliament has recommended that the contentious clause limiting surrogacy only to “close relatives” to be removed from the Surrogacy (Regulation) Bill, 2019.
• These recommendations aim to make the benefits of modern technology more easily available to infertile couples.
• A look at the genesis of the Bill, its provisions and why the current report could signal some progressive amendments in the Bill:

What are the provisions of the Surrogacy (Regulation) Bill?

• The Surrogacy Bill proposes to allow altruistic ethical surrogacy to intend infertile Indian married couples in the age groups 23-50 years (women) and 26-55 years (men).
• It was first mooted in 2016 in the wake of repeated reports of exploitation of women who were confined to hostels, not provided adequate post-pregnancy medical care and paid a pittance.
• The couple should have been legally married for at least five years and should be Indian citizens.
• They cannot have a surviving child, either biological or adopted, except when they have a child who is mentally or physically challenged or suffers from a life-threatening disorder with no permanent cure.
• It requires surrogacy clinics to be registered, and national and state surrogacy boards to be formed.
• It makes commercial surrogacy, and abandoning or disowning a surrogate child punishable by imprisonment up to 10 years and a fine up to Rs 10 lakh.

What changes has the Select Committee suggested?

• The Select Committee recommended that the “close relatives” clause should be removed, and any “willing” woman should be allowed to become a surrogate mothe.
• It has strongly backed the ban on commercial surrogacy.
• It has also recommended that divorced and widowed women aged between 35 and 45 years should be able to be a single commissioning parent.
• It has emphasised the need for a five-year waiting period for childless married couples could be waived if there is a medical certificate that shows that they cannot possibly conceive.
• It has recommended that persons of Indian origin should be allowed to avail surrogacy services.
• It has not, however, recommended expanding the definition of commissioning parent to include singles, either men or women.
• It also recommended that the ART Bill (which deals with assisted reproductive technologies) should be brought before the Surrogacy bill so that all the highly technical and medical aspects could be properly addressed.

What is the ART Bill?

• The Assisted Reproductive Technology (Regulation) Bill has been in the making since 2008.
• It aims to regulate the field through registration of all IVF clinics and sperm banks, segregation of ART clinics and gamete banks etc.
• It also requires national and state boards to be established for the purpose of regulation of the fertility market.
• The Select Committee report says: “Surrogacy is a part and parcel of ART and hence the Surrogacy Bill should come into force only after the enactment of ART Bill.
• Bringing Surrogacy Bill before the ART will be irrelevant and also create duplication of Boards.
• The Standing Committee on Health and Family Welfare, too has “strongly recommended” to the government that the two Bills should be brought together and not in isolation.

How big is India’s surrogacy market?

• Estimations by the ICMR put it around 2,000-odd babies per year through commercial surrogacy — when a woman is paid an agreed sum for renting her womb.
• CII figures say surrogacy is a $2.3-billion industry fed by a lack of regulations and poverty.

What happened the last time the Bill was scrutinized by a parliamentary panel?

• The Bill was earlier scrutinized by the Parliamentary Standing Committee on Health and Family Welfare.
• That committee had recommended that compensation should be the norm and the word “altruistic” should be replaced with “compensated”.
• Couples — including those in live-in relationships — should be allowed to choose surrogates from both within and outside the family. Altruistic surrogacy, it observed, is tantamount to exploitation.
• The “close relative” condition is open to misuse in a patriarchal setup, the committee had observed.
• Given the patriarchal familial structure and power equations within families, not every member of a family has the ability to resist a demand that she be a surrogate for another family member.
• A close relative of the intending couple may be forced to become a surrogate which might become even more exploitative than commercial surrogacy.
• These recommendations were not accepted by the government.

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