Surrogacy in India

Context

The recent announcement by Tamil film director Vignesh and his wife, actor Nayanthara, that they had become parents to twin boys is building up into a controversy, with speculations that the couple opted for surrogacy.

What is Surrogacy?

• Surrogacy is defined as a practice wherein one woman bears and gives birth to a child with the intention to thereafter hand it over to the intending couple, as per the Surrogacy (Regulation) Act, 2021 (SRA).
• The SRA Act says the surrogate should be married and have a child of her own.
• The surrogate woman cannot be given payments, rewards, benefits or fees, except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother.
• While commercial surrogacy is not allowed in India such procedures are allowed only for altruistic purposes with many restrictions on the person seeking to apply under the law.
• No other monetary consideration will be permitted.

About the Surrogacy Laws

• The parliament in 2021 passed two laws: 
• The Surrogacy (Regulation) Act
• It governs the practice and process of surrogacy in India.
• It provided a gestation period of ten months from the date of coming into force to existing surrogate mothers' to protect their wellbeing.
• The Assisted Reproductive Technology (Regulation) Act
• It was enacted for regulation and supervision of the assisted reproductive technology clinics and banks.
• Under the Act, the services can be made available to a woman above the age of 21 years and below the age of 50 years and to a man above the age of 21 years and below the age of 55 years.
• ART procedures include gamete donation, intrauterine insemination, and in-vitro fertilisation or IVF. 

Major provisions of the Law 

• Eligibility: According to the Surrogacy (Regulation) Act, only a married couple who has a medical condition necessitating gestational surrogacy can avail it. 
• They have to first obtain a certificate of recommendation from a District Medical Board.
• An intending woman who is a widow or divorcee between the age of 35 to 45 years- can also avail the surrogacy.
• The intending couple where the woman is of the age of 23 to 50 years and a man between 26 to 55 years- is eligible under the law.
• Only such intending couples can apply who have not had any surviving child biologically or through adoption or earlier surrogacy.
• An exception has been provided for the couples whose child is "mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure".
• The intending couple or intending woman is not allowed to abandon the child, born out of a surrogacy procedure, for any reason whatsoever.
• A child born out of a surrogacy procedure is deemed to be a biological child of the intending couple or intending woman.
• Eligibility to be a surrogate mother
• A married woman of the age of 25 to 35 years on the day of implantation, with a child of her own, can be a surrogate mother.
• She can act as a surrogate mother only once in her lifetime and with only three attempts of procedure is allowed.
• The woman has to give a written informed consent for the purpose and also be medically and psychologically fit.
• No charges other than medical expenses can be given to the surrogate mother or her dependents or her representative by the intending couple or woman.
• Abortion
• A surrogate mother can be allowed abortion during the process of surrogacy only in accordance with the Medical Termination of Pregnancy Act.
• She also cannot disclose the identity of the couple seeking the surrogacy.
• Penalty
• Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc. 
• These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.
• Regulation of Surrogacy Clinics

No Surrogacy Clinic can conduct or associate with or help in any manner in conducting the surrogacy procedure unless it is registered under the law.