Law Firm with over 15 years in the field of Surrogacy and Fertility Law

Surrogacy in India

Surrogacy, once a niche realm of assisted reproduction, has emerged as a complex legal and ethical terrain in India. The journey from complete legal ambiguity to the current framework defined by the Surrogacy (Regulation) Act, 2021 has been marked by intense debate, evolving social norms, and a constant struggle to balance the desires of intending couples with the rights and well-being of surrogate mothers. We delve into the nuances of surrogacy law in India, exploring its key provisions, challenges, and future directions.

From Uncharted Territory to Regulation:

Prior to 2021, surrogacy in India existed in a legal grey area. The absence of specific legislation made it a flourishing industry by itself. With the number of foreign nationals coming from abroad to take up surrogacy in India, given that commercial surrogacy was permitted at that time for foreign nationals in India at that time, it attracted the eyes of the media from all over the world. The negative publicity that the industry was vulnerable to exploitation, ethical dilemmas, and legal battles surrounding parental rights and compensation for surrogate mothers. Subsequently, surrogacy came to be banned for foreign nationals in India, irrespective of whether they were of Indian Origin by way of a notification promulgated by the Ministry of Home Affairs. These, and many other factors, prompted the landmark Surrogacy (Regulation) Act, 2021, which attempted to regulate the practice by allowing altruistic surrogacy only. However, the Act faced criticism for its stringent eligibility criteria and perceived bias towards heterosexual married couples.

The 2021 Act: A Shift in Paradigm:

Recognizing the need for a more comprehensive and balanced approach, the Surrogacy (Regulation) Act, 2021 ushered in a new era for surrogacy in India. The Act retains the core principle of altruistic surrogacy but introduces significant changes:

  • Expanded Eligibility: The Act now allows single Indian women and divorced/widowed individuals to be intending parents, recognizing the changing social realities of family formation.
  • Surrogacy Agreement Scrutiny: The Act mandates rigorous scrutiny of surrogacy agreements by a designated authority to ensure informed consent, transparency, and adherence to ethical principles.
  • Compensation and Protections for Surrogate Mothers: While commercial surrogacy remains prohibited,surrogate mothers are entitled to comprehensive medical and psychological care, along with insurance coverage.

Challenges and Controversies:

Despite its progressive intentions, the 2021 Act continues to face challenges:

  • Limited Access: The stringent eligibility criteria, including age restrictions and medical requirements, restrict access to surrogacy for many couples struggling with infertility.
  • Exploitation Concerns: The altruistic framework, while well-intentioned, raises concerns about potential exploitation of surrogate mothers, particularly in rural areas where awareness and legal recourse may be limited.
  • Ethical Dilemmas: The Act grapples with complex ethical questions surrounding commodification of reproduction, gender roles, and the rights of the child born through surrogacy.

Way Forward: Continuous Dialogue and Improvement

As India navigates the complex landscape of surrogacy law, continuous dialogue and improvement are crucial. Key areas of focus include:

  • Reviewing eligibility criteria: Balancing the need for safeguards with ensuring access for deserving couples through a more nuanced approach.
  • Strengthening safeguards for surrogate mothers: Implementing robust monitoring mechanisms and empowering surrogate mothers with legal literacy and support networks.
  • Addressing ethical concerns: Engaging in ongoing public discourse and fostering ethical guidelines for surrogacy clinics and practitioners.
  • Promoting awareness and education: Raising public awareness about the legal framework, ethical considerations,and emotional complexities of surrogacy.

Surrogacy law in India is a dynamic and evolving field. While the 2021 Act represents a significant step towards a more regulated and ethical framework, ongoing efforts are needed to address existing challenges and ensure that surrogacy remains a safe and fulfilling experience for all involved. By fostering open dialogue, promoting ethical practices, and continuously improving the legal framework, India can strive to create a surrogacy landscape that respects the rights of all individuals while upholding the values of compassion and family building.

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Resources

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Legislations

  • The Surrogacy (Regulation) Act, 2021
  • The Assisted Reproductive Technology (Regulation) Act, 2021

Études Newsletter

  • The Surrogacy (Regulation) Rules, 2021
  • The Assisted Reproductive Technology (Regulation) Act, 2021

“Every Person deserves to further their lineage.

Hari G. Ramasubramanian

Founder, Indian Surrogacy Law Centre

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