Surrogacy is a type of assisted reproduction in which a woman bears a child for another person or couple who are unable to conceive or bring a pregnancy to term. The method became widespread in India in the early 2000’s as a result of lower prices and more liberal rules than in other nations. The Indian surrogacy sector expanded quickly, with several clinics providing commercial surrogacy services to both international and domestic intended parents.

surrogacy and lawNevertheless, in 2015, the Indian government began to tighten down on commercial surrogacy, citing worries about surrogate abuse and the commercialization of women’s bodies. The government approved the Surrogacy (Regulation) Law in 2016, which prohibited commercial surrogacy for foreign couples and confined it to Indian heterosexual couples who had been married for at least five years and are unable to conceive.


The Indian surrogacy sector has dropped dramatically since the bill’s passing, with several facilities closing. Yet, some clinics continue to provide the services to Indian couples that fulfill the legal requirements. Surrogacy’s ethical issues in India are still being disputed, with some defenders claiming that it provides a crucial source of cash for poor women, while others claim that it reinforces a system of exploitation and commercialization of women’s bodies.


History of surrogacy in India


Many people assume that surrogacy originated in the 1980’s or 1990’s, yet it dates back far further, to the mythological era. Lord Krishna’s brother, Balram, is claimed to have been transplanted to the womb of Rohini, Vasudeva’s first wife, to protect her from Devaki’s brother, Kansa. Rohini served as the intended parents’ surrogate ( vasudev and Devaki). We may deduce from this situation that the technique was performed to protect or build a family, although many people disapprove upon simply hearing the term.


Surrogacy, the practice of a woman bearing a child for another person or couple, gained popularity in India in the early 2000’s. Because of cheaper prices and more liberal rules than in other countries, the business flourished swiftly, and many clinics began offering commercial surrogacy services to both international and domestic intended parents.


The first known case occurred in India occurred in 1994, when a woman called Saroj Gupta carried a baby for her infertile daughter. This instance piqued the curiosity of fertility experts in India, and it increased interest in surrogacy as a treatment option for infertile couples.


Gujarat reported India’s first commercial surrogacy case in 2002. In this case, an American couple recruited an Indian surrogate to bear their kid. Because of the favorable resolution of this case, an increase of international couples seeking surrogacy services in India has occurred.


Surrogacy was previously tolerated by the Indian government, and there were minimal restrictions controlling the practice. This raised worries about surrogate exploitation and the monetization of women’s bodies. This technique, on the other hand, remained a lucrative industry for many women who were ready to bear a child for a cost.


To promote the safety and well-being of surrogates and intended parents, the Indian Council of Medical Research (ICMR) developed guidelines for surrogacy facilities in 2012. The guidelines included requirements for medical and psychological screening of surrogates, legal contracts between intended parents and surrogates, and the establishment of a grievance redressal mechanism.


Advantages of surrogacy in India


Surrogacy has benefits and drawbacks, and some of the benefits of surrogacy in India include:


cost-effective : Surrogacy in India is less expensive than in other nations such as the United States, Canada, and Europe. This is due to reduced living costs, lower medical costs, and the availability of skilled surrogates.


Surrogate availability: India has a vast population, and there is a pool of women eager to be surrogates due to the financial incentives. This means that intending parents will have an easier time finding a surrogate than in other nations.


Legal framework: Surrogacy has been the subject of debate and legislative revisions in India, but the Surrogacy (Regulation) Bill, 2016, offers a legal framework for the practice. Surrogates are protected by law.


High-quality medical treatment: There are numerous well-known fertility clinics in India that give high-quality medical care. Several of these clinics offer cutting-edge equipment and competent medical experts who have received reproductive medicine training.


Variety of egg donors: Because India is a culturally varied country, prospective parents can select from a wide pool of egg donors. This is especially tempting to couples seeking donors from similar ethnic or cultural origins.


Surrogate anonymity: Surrogates in India have the option of remaining anonymous to the intended parents. This is useful for intending parents who want to keep their family-building journey confidential.


It is crucial to highlight that, while surrogacy in India has certain benefits, it is not without its drawbacks. The practice has been chastised for exploiting and commodifying women’s bodies. There have also been reports of surrogates being abused and not receiving sufficient medical treatment, emphasising the importance of continuous industry regulation and control.


The surrogacy (Regulation) Act, 2021


 After years of effort and resistance by activists, the Indian parliament enacted the Surrogacy (Regulation) Act, 2021 to introduce and control the surrogacy procedure. Several statutes have been passed to regulate the option for women who are unable to conceive while also protecting the rights and dignity of surrogates. The beneficiaries of the Act are as follows.


Act’s beneficiaries


  • Intended parents: According to Section 2(h) of the Act, a ‘couple’ is an Indian man and woman above the age of 21 and 18, respectively, who are lawfully married. Section 2(r) of the Act defines a ‘intending pair’ as a couple who intends to become parents through surrogacy and has medical proof that requires gestational surrogacy.
  • Intended woman: An intended woman, as defined in Section 2(s) of the Act, is a ‘widow’ or ‘divorcee’ between the ages of 35 and 45 who intends to use this service.


In this case, the intended lady and the planned couple require a recommendation certification from the National Assisted Reproductive Technology and Surrogacy Board, which is established under Section 17 of the Act. Apart from the aforementioned groups, no one else shall be permitted to use surrogacy services under this Act.


The statute also excludes couples who are in a live-in relationship, because the pair is defined as a “married Indian man and woman” under section 2(h). The statute also prohibits access to surrogacy for couples who are medically unsuited for the process, for fear that any persistent ailment may be passed on to the child.


LGBTQ+ in the Act


The act’s exclusion of the LGBTQ+ population has sparked fierce debate among community members. The act makes same-sex couples, single parents, and other members illegal to bear a child through surrogacy. To foster equality in society, to which every Indian citizen is entitled by virtue of the fundamental rights guaranteed by the Indian Constitution, the LGBTQ community must be acknowledged.


In the 2008 case of Baby Manji Yamada v. Union of India, the Supreme Court had to examine a surrogacy-related problem for the first time. In that case, the court supported the notion of a single parent or a homosexual couple being the legal parents and recognized surrogacy as a manner of embracing parenting. The latter has been completely disproven by the Act’s implementation. As a result, it is critical to allow heterosexual couples, as well as homosexual couples and non-binary groups, the status and privilege of carrying children.


Banning of commercial surrogacy and legalising Altruistic 

In the event of surrogacy, the law favours solely altruistic surrogacy as the only option to be used. The term “altruistic surrogacy” refers to intended parents approaching close family members for the job of surrogates and not paying them the full amount they deserve. While this may appear to be a noble thing to do, it may damage the family bond. The prohibition of commercial one may have an influence on the livelihood of women who choose to become surrogates for financial gain.


It is absurd to expect a woman, whether a close relative or not, to care for a kid for nine months (plus recovery time) without being rewarded or acknowledged for the toll it takes on her physical and mental health. The altruistic type is still exploitative for women who are close relatives, but in a different way, and the lack of payment makes it much worse. Options such as compensating surrogacy will protect the exploited stakeholder, who is the intended receiver of this law, while preserving their physical autonomy and right to nourishment; nevertheless, further consideration is necessary. As a result, this provision offers an ethically limited option to both unlimited commercial surrogacy and unrealistic altruistic surrogacy.

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