14 Salient Features & 6 Criticisms Against Surrogacy Laws In India

The diva of South Indian movies Nayanthara and her director husband Vignesh recently became proud parents to twins through surrogacy. And the couple has hit the headlines since then, more because of the unconventional method they chose for embracing parenthood. In India, the subject has been under debate in the recent past. The surrogacy laws in the country have undergone changes recently until now when the discussion around the celebrity couple brought it to the limelight, making it a dinner table conversation. However, the opinions are widely polarised with many finding it restrictive and invasive of privacy for different sections of the population. 

As Shruti Swaika, Partner at Fox & Mandal LLP Solicitors & Advocates opines, “The recent surrogacy law is fairly restrictive in nature, and appears to have been enacted to regulate, rather curb, what had earlier become quite a marketplace in India, and especially in Gujarat. Once this area sees more regulation, and misuse of surrogacy (surrogate mothers) is brought under control, we can hope to see some amendments to make it a more inclusive law.” 

What Is Surrogacy?

For those who need some clarity over what surrogacy is about, it is a process in which a woman bears a child on behalf of a couple who intend to become parents. The child is handed over to the couple after his/her birth. In India, the surrogacy laws are monitored by the Surrogacy (Regulation) Act, 2021 (SRA) and the ART (Assisted Reproductive Technology Act) Regulation, 2021.

10 Salient Features Of Surrogacy Regulation Act, 2021 (SRA)

1. Only Indian couples married for at least 5 years are legally eligible for opting for surrogacy.
2. The husband should be aged between 26 years and 55 years, and the wife must be aged between 23 years and 50 years.
3. Indian couples who already have biological or adopted children are prohibited from undertaking surrogacy. The exceptions are in cases where the couple has children who are physically or mentally challenged or have been diagnosed with life-threatening or fatal disorders. 
4. Couples must have medical reports issued by a District Medical Board as a proof of their infertility to be legally eligible.
5. There should be an order specifying the custody of the surrogate child passed by a Magistrate’s court and the order of parentage. 
6. The couple interested in surrogacy must purchase an insurance to cover postpartum delivery for the surrogate for a span of 16 months.
7. The surrogate should already have a child of her own and cannot be a surrogate for more than once in her lifetime.
8. The surrogate mother should be a close relative of the couple and cannot accept compensation, benefits, rewards, or any monetary transactions other than medical expenses and other allied expenditures, and insurance coverage.
9. She should be able to show a certificate that proves that she is physically and psychologically fit to undertake the procedure.
10. Other than conditions of infertility and altruism, surrogacy cannot be carried out for the purpose of exploitative activities like prostitution and selling children. 

4 Other Features Of Surrogacy Laws In India

1. All surrogacy clinics must be registered with the government to legally undertake the procedure.
2. In case of an abortion of the surrogate child, a written consent have to be presented by the surrogate mother. The written consent should also be authorised by the appropriate authority in compliance with the Medical Termination of Pregnancy Act, 1971.
3. National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB) have been set up to advise the government regarding surrogacy clinics and oversee the implementation of the Act. 
4. Practise of commercial surrogacy is entitled to imprisonment for at least 10 years, along with a hefty fine extending up to Rs 10 lakh.

6 Criticisms Against Surrogacy Laws In India

1. Surrogacy in the country is legal only for married couples of Indian nationality and with a straight sexual orientation. It does not extend to couples from outside the country, same-sex couples or of any other sexual orientation, couples in a live-in relationship, or couples beyond the required age bracket. Thus, the law is accused of not being equal to all, which the Constitution of India otherwise emphasises on.
2. According to the existing laws, only couples with a certificate to prove their infertility are eligible for surrogacy. This violates the privacy of individuals, going against the right to life under Article 21 of the IPC.
3. Several critics of the surrogacy law argue that reproductive autonomy, that is, the right to procreation should be beyond the domain of the State.
4. Critics are also of the opinion that the law encourages patriarchal norms by not taking into consideration that surrogacy can be a source of livelihood for women who choose to take it up as a profession by choice. 
5. Surrogacy with monetary benefits being involved in the process restricts the intended couple from finding a surrogate because very few relatives will be comfortable with being a surrogate mother. 
6. The punishment of 10 years imprisonment and a fine of up to Rs 10 lakh is harsh.

The Netflix movie Mimi, starring Kriti Sanon in the lead, paints a realistic image of the perils of surrogacy in India. The story is woven around the repercussions of a US-based intended couple backtracking on their plans to have the baby that they had opted for through commercial surrogacy in India. However, that does not imply that women in India should be denied the right to become a commercial surrogate mothers if they so desire voluntarily. Instead, there should be laws to protect her interests rather than supersede her right to life and personal choice of profession. 

There are various other clauses in the law that must be reviewed and debated over, and changes brought around accordingly to make them more inclusive and equal to all, which the Constitution of India guarantees to all its citizens. Till then, the law approaches the subject of surrogacy superficially and ends up cannibalising various provisions mentioned in the IPC to safeguard the rights of the citizens of the country. 

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