Indian Surrogacy- A legal perspective

The Surrogacy (Regulation) Act 2021 and The Assisted Reproductive Technology (Regulation) Act 2021

Indian Surrogacy- A legal perspective
Photo by Aditya Romansa / Unsplash

In 2016, Cabinet approved the Surrogacy (Regulation) Bill 2016, which imposed various restrictions on Surrogacy. The bill also banned commercial surrogacy which was legal in India since 2002. Indian perspective towards surrogacy has changed a lot in the past few decades and has been increasingly popular among infertile couples by providing them with the best medical facilities.

In India, Surrogacy has been subjected to a lot of controversies, due to various social, legal, and ethical hazards to both mother and child. One of the main issues is the actual psychological and physical harm to women. This concept of surrogacy has turned the reproductive capacity of a woman into a commercial contract. The pregnancy becomes a service and the child ‘a saleable product’. Unfortunately, while considering the baby as a product of surrogacy, the rights of the child are not considered. Transferring parenthood from the birthing mother to the couple negatively affects the natural right like breasts which causes a lot of health issues to the mother and the child as well.

It has been observed that most women in India who agree for being a surrogate usually do it due to financial need and hence this becomes a tool to exploit such women economically, emotionally, and physically.

Legal Issues:

In the process of artificial insemination certain legal issues like matrimonial relations, legitimacy of a child, child’s right to know vs donor's right to privacy, and lastly child’s right to personal and property laws, etc.

· The legitimacy of a child: This has been one of the most important issues related to the legitimacy of the child born from artificial insemination. Section 16 of the Hindu Marriage Act 1955 clearly states that even if a child is born out of a null or void marriage under section 11 of the Act, the child shall still be legitimate under section 12. Hence a child irrespective of any circumstance shall be considered legal and will have all rights over the property of his parents, apart right over the property of the Hindu Undivided Family.

· Validity of surrogacy agreement: The question is whether surrogacy contracts are the same as other contracts? Well, this raises a lot of serious morality questions, pointing out that does insemination amounts to adultery or is a way of exploiting a helpless woman for financial or economical needs. The validity of such a contract is also questionable under the Indian Contract Act, 1872, whether the child to be handed over should be considered a saleable commodity? A party may refuse the performance of the contract or can be claimed that the child is not according to the specification agreed upon at the time of the agreement and hence the final product(the child) can be rejected or damages can be claimed.

The Surrogacy (Regulation) Act 2021 and The Assisted Reproductive Technology (Regulation) Act 2021.

In the central government in January 2022 made it official and passed the law for regulating surrogacy services in India the ‘Surrogacy (Regulation) Act 2021 along with another act, named the Assisted Reproductive Technology (Regulation) Act 2021, aims to regulate in vitro fertilization (IVF) clinics and prohibit commercial surrogacy.

Highlights of The Surrogacy (Regulation) Act, 2021

· Prohibition and regulation of surrogacy clinics: It will be mandatory for surrogacy clinics to register under this Act, and prohibits them from employing or taking any service from any person who does not possess the qualifications as prescribed under this Act. No surrogacy clinic, paediatrician, gynaecologist, embryologist, registered medical practitioner or any person shall conduct, offer, undertake, promote or associate with or avail of commercial surrogacy in any form.

· Regulation of surrogacy and surrogacy procedures: The procedure can only be done for purposes when it is only for altruistic surrogacy purposes, is not for commercial purposes, and it is not for the purpose of selling the child or any other form of exploitation.

· Written informed consent of surrogate mother: A valid consent from the surrogate mother should be obtained, and she should be made aware of all known side effects or after-effects of the procedure, in the language she understands.

· Registration of surrogacy clinics: It’s mandatory for the clinics to be registered under the act, and unless not registered can not perform any procedures. Every surrogacy clinic which is conducting surrogacy or surrogacy procedures, partly or exclusively, shall, within a period of sixty days from the date of appointment of the appropriate authority, apply for registration.

· Establishes a National Surrogacy Board at the Central level and state surrogacy boards.