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The Surrogacy (Regulation) Act, 2021 is a comprehensive legislation that regulates the practice of surrogacy in India. After years of debate, this law replaced the previous law of 2019 and came into force on 25 January 2022. It establishes a national framework, standards, and guidelines while completely banning commercial surrogacy.

Key Provisions

Under the law, India simply allows for selfless surrogacy. This means that the surrogate cannot be compensated beyond reasonable medical expenses and insurance coverage. Commercial arrangements or exchange of financial compensation are strictly prohibited.

Prospective couples must have an illness that prevents them from naturally conceiving or carrying the pregnancy to term. At least one partner must be an Indian citizen and married for at least 5 years. According to the new law, single parents, partners, LGBT couples, or foreigners cannot be surrogates in India.

Surrogate mothers must be close relatives of the couple, born naturally, and be at least 25 years old to 35 years old. No woman can act as a surrogate more than once in her life. For separated/divorced couples, written consent from the divorced spouse is required.

The law requires obtaining proof of eligibility and a parental order from the appropriate authorities. Practicing surrogacy without complying with regulations can result in up to 10 years in prison and large fines. The law also regulates surrogacy clinics and prohibits surrogate abortion based on gender preferences.

Consideration for Surrogate Mothers in India

Becoming a surrogate is a decision that requires complex requirements to be met to ensure a successful outcome.

  • First, the surrogate must really want to take the child to another couple without financial incentive, as commercial surrogacy is strictly prohibited.
  • In addition, the surrogate must meet certain demographic criteria, such as being a married woman between the ages of 25 and 35 with at least one biological child.
  • In addition, proof of medical and psychological fitness is required to ensure that the surrogate is. physically and mentally able to perform surrogacy, minimizing potential risks for you and your baby.
  • Finally, surrogacy is regulated to ensure safety. Each surrogate only gets one try, and intended parents can try a surrogate up to three times. Only one embryo can be transferred per experiment, ensuring maximum safety for all involved.

Rationale and Background

The surrogacy industry in India was largely unregulated previously, fraught with concerns around the exploitation of surrogate mothers from underprivileged backgrounds. Cases of terminated pregnancies without consent and custody disputes over surrogate children increased alarmingly.

After consultations with stakeholders, the government aimed to prohibit commercial surrogacy while promoting ethical, regulated altruistic surrogacy services. Officials believe allowing compensated arrangements increases risks of coercion and undue inducement for monetary benefit.

Restricting eligibility to Indian married couples aims to align the practice with Indian cultural ethos and safeguard the rights of the surrogate child. The law intends to prevent exploitation and trafficking while ensuring surrogate mothers are treated respectfully.

In the case of Baba Manji Yamada v. Union of India (2009), a child was born to an Indian surrogate mother for a Japanese couple who separated before the child’s birth. The biological father wanted to take the child with him to Japan, but there was no legal provision for such a case. The Supreme Court of India then intervened and gave the child to her grandmother. This case spurred the Government of India to enact a law regulating surrogacy.

In the case of Jan Balaz v. Anand Municipality (2008), the Gujarat High Court held that the birth certificate of a child born through surrogacy would carry the name of the surrogate mother. The child was born to a surrogate mother of Indian nationality. However, the child’s father, who asserted the rights, was a German national. After the birth of the child, Germany refused his citizenship. The whole matter was more complicated as there was no precedent regarding a foster child’s citizenship prior to the case. The case grew exponentially as it progressed. In the present case, the identity of the two children had already been established as Indian nationals by birth and thus Indian nationals within the meaning of Section 3(1)(c)(ii) of the Citizenship Act.

Responses and Criticism

The new law received both support and criticism from various parties. Health Ministry officials defend the need for regulation to prevent the rampant commercialization that has occurred without a legal framework. Some women’s rights groups and LGBTQ activists see a ban on commercial surrogacy as a “regressive” step.

Critics argue that altruistic arrangements are actually less common, which calls into question their viability. They believe that legal business contracts with regulated terms are a pragmatic approach to prevent the industry from going underground again.

The exclusion of single parents, LGBT couples, and foreigners has also been strongly criticized. Many see these rules as discriminatory and violating the reproductive rights of marginalized groups. Legal challenges against possible violations of constitutional rights have been submitted to the Supreme Court.

However, the government maintains that these exclusions are in the best interest of preventing the exploitation and commercialization of surrogacy. He believes that allowing commercial transactions would inevitably encourage the monetization of reproductive work.

Only time will tell how effectively surrogacy law balances ethical concerns, prevents commercialization, and allows access to intended parents within defined legal boundaries. The challenges of its implementation and the feasibility of its provisions are likely to be tested in the future.

Overall, the Act is India’s first comprehensive legal framework for surrogacy after years of political debate. Although the goal is to prohibit collusion and protect against exploitation, it also reflects difficult trade-offs on other fronts.

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