What Is Surrogacy
Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman agrees to deliver/labor on behalf of another couple or person, who will become the child’s parent(s) after birth.
When Is It Usually Sought?
People may seek a surrogacy arrangement when a couple do not wish to carry a pregnancy themselves, when pregnancy is medically impossible, when pregnancy risks are dangerous for the intended mother, or when a single man or a male couple wish to have a child.
Eligibility for Couples
The woman and man in such a case have to be between 25 and 50 years of age. [Only heterosexual couples are recognised] They should not have had a child, either naturally conceived, adopted, or born out of surrogacy. They should also have with them a clear medical and radiological report, and sometimes if asked specifically, a report that also clears them of genetic anomalies.
Eligibility for Surrogate
As required by the law, the surrogate has to be eligible too. She has to be between 25 and 35 years of age; Be married with a child of her own. She should also be a first-time surrogate. Furthermore, a psychiatrist has to certify her as being mentally fit.
Evolution of Surrogacy in India
- Assisted Reproductive Technology Bill, 2013: This bill does not allow commercial surrogacy that involves exchange of money for anything other than paying for medical expenses for the mother and the child.
- Surrogacy (Regulation) Bill, 2016 and 2019: This bill proposed to permit only Indian heterosexual couples married for at least 5 years with infertility problems to access altruistic or unpaid surrogacy and thereby banning commercial surrogacy. However, it lapsed owing to adjournment by parliament
- Surrogacy (Regulation) Act, 2021: This Act explains surrogacy as a practice in which if a couple is incapable of producing a child of their own due to infertility or any disease, they are eligible for surrogacy with certain guidelines. It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease.
Arun Muthuvel v. Union of India
A petition challenging surrogacy laws in India was filed in the Supreme Court. The petition challenged the arbitrary nature of these laws and their subsequent discriminatory impact. In particular, the Assisted Reproductive Technology (ART) (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021 discriminate against oocyte donors and members of the LGBTQIA+ community, creating a restrictive regime which impedes their reproductive rights. The primary concerns related to these laws are the violation of donors’ privacy, the exclusion of LGBTQIA+ members and a blanket ban on commercial surrogacy.
Baby Manjhi Yamada vs. Uoi
In this case, a Japanese couple, Dr. Ikufumi Yamada, and his wife visited India to have a baby through the practice of surrogacy. Then they hired an Indian woman as a surrogate mother for their child who lived in Gujarat where this practice was pioneered. Due to some matrimonial disputes, the couple had divorced. But the father wanted to have custody of the child but according to Indian law, the single father cannot adopt a girl child. So, in this case, Justice Arijit Pasayat and Justice Mukundakam Sharma of the supreme court give the custodial rights of the girl child to her grandmother. So, in this case, it was analyzed that there is a need to have regulated surrogacy laws in the country.
Jan Balaz vs. Anand Municipality
In this case, a German couple hired a surrogate mother named Marthaben Immanuel Khrishti who gave birth to two twins. This German couple worked in the UK and now their two twins need an Indian passport to travel. Since the two twins did not have citizenship because its process was litigated in the courts, the passport authorities did not grant passports to the twins. And in German, there was no law for surrogacy. The Supreme Court did not grant a passport but granted an exit permit to the children and German authority allowed them to adopt the children and fight for their rights.
Surrogacy in India can only be for altruistic purposes and commercial surrogacy is prohibited.No one can sell or buy human embryos and gametes. No one can sell or buy the services of a surrogate. Furthermore, no payment, reward, benefit, fees, remuneration, or inducement can be offered to the surrogate, her dependents, or her representative.