Surrogacy Act

Several petitioners in the Delhi High Court have questioned the constitutionality of the surrogacy act, which carries discriminatory provisions on the basis of marital status, age and gender.

• India has emerged as a hub for infertility treatment, attracting people from the world over with its state of the ART technology and competitive prices to treat infertility.
• Unregulated market, which has expanded in the country are dominated by the middle man, further responsible for the violation of rights and exploitation of the surrogate mother.
• Absence of legal-medico care in the process has emerged the need for implementation of the act.
• Surrogacy bill was introduced in the year 2016 and passed in the year 2021

Why there is a need for surrogacy act in India?

• Unsupervised and illegal market: Socio-economic conditions have influenced the growing instances of infertility treatment and ‘womb renting’ in India. Without any proper legislative backing the market remained unsupervised and unregulated, contributing to several other social challenges.
• Exploitation of the surrogate mother: Due to inappropriate legal measures, there are rising instances of exploitation of surrogate mother by the middle man and couples who are opting for the surrogacy.
• Influence of middle man: In this unregulated process middle man play the central role to control the market, and responsible for violation of rights of the surrogate mother, the couple opting for surrogacy and the baby.

• The act of 2021, provides for ‘altruistic surrogacy’, where the medical expenses and insurance coverage of the surrogate mother will be provided by the couple during the pregnancy period, and no other monetary consideration is permitted.
• Provisions for the couple opting surrogacy: Any couple that has proven infertility can be the candidate to opt for surrogacy. ‘Intended Couple’ will be eligible if they have a ‘certificate of essentiality’ and ‘certificate of eligibility’.
  • Certificate of essentiality:
    • Certificate of essentiality of one or both from a district medical board
    • An order of parentage and custody of the surrogate child passed by a Magistrate’s court
    • Insurance cover of the surrogate mother.
  • Certificate of eligibility:
    • Married couple for at least 5years
    • Female must be between 23 – 50 years of age
    • Male must be between the range of 26 – 55 years
    • They must not have any surviving child
  • Provisions for surrogate mother:
    • Any close relative of the couple
    • Able to provide medical fitness certificate
    • Married women with her own child
    • Age limit must be between 25 – 35 years.
  • Other provision:
    • Exception to certificate of eligibility: Couple with a surviving child could not opt for surrogate child except, if the surviving child is mentally or physically challenged or suffering from fatal illness life threatening disorder.
    • Act limits the no of time a women can be a surrogate mother, i.e., for once.

• According to the provisions of the act, only married couple for more than 5years with a proven infertility, without a surviving child can go for surrogacy. Provisions of the act limits several groups of the society to go for surrogacy like:
  • Single men
  • Single women
  • Gay couples

• Right to equality: The act of 2021 has certain discriminatory provisions, which violate the right to equality, provided under part –III of the constitution.
• Right to life with personal choices: The act also restricts the right to life under Article 21, by limiting few groups in the society to have a baby through assistive methods.

The major concerns lie ahead under the new act for surrogacy is the discriminatory provision on the basis of marital status, age and gender along. It is also essential for the state to protect the rights of the couple, surrogate mother and the new born baby.