The debates around the Surrogacy Act

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CategoryPolity

Last Updated08/06/2022

Petitioners in the Delhi High Court questioned why marital status, age, or gender were the criteria for being allowed to commission or not commission surrogacy in India.

‘Surrogacy’ is defined as a practice where a woman undertakes to give birth to a child for another couple and agrees to hand over the child to them after birth.
It allows ‘altruistic surrogacy’ — wherein only the medical expenses and insurance coverage is provided by the couple to the surrogate mother during pregnancy. No other monetary consideration will be permitted.

The Surrogacy (Regulation) Bill was introduced in Parliament in November 2016, and passed in the Winter session of Parliament in 2021.
The Act sought to regulate surrogacy, part of a rather flourishing infertility industry in the country.

India has emerged as a hub for infertility treatment, attracting people from the world over with its state of the art technology and competitive prices to treat infertility.
Due to prevailing socio-economic inequities, underprivileged women found an option to ‘rent their wombs’ and thereby make money to take care of their expenses — often to facilitate a marriage, enable children to get an education, or to provide for hospitalization or surgery for someone in the family.
Once information of the availability of such wombs got out, the demand also picked up.
Unscrupulous middle men inveigled themselves into the scene and exploitation of these women began.
Several instances began to emerge where women, in often desperate straits, started lodging police complaints after they did not receive the promised sum.
For instance, in 2008 a Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split with both of them refusing to take the child.
In 2012, an Australian couple commissioned a surrogate mother, and arbitrarily chose one of the twins that were born.

Conditions for Intending Couples: Any couple that has ‘proven infertility’ are candidates. The ‘intending couple’ as the Act calls them, will be eligible if they have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority. The former will be issued if the couple fulfills three conditions:
- One, a certificate of infertility of one or both from a district medical board;
- Two, an order of parentage and custody of the surrogate child passed by a Magistrate’s court;
- Thirdly, insurance cover for the surrogate mother.
Eligibility certificate: An eligibility certificate mandates that the couple fulfill the following conditions:
- They should be Indian citizens who have been married for at least five years;
- The female must be between 23 to 50 years and the male, 26 to 55 years;
- They cannot have any surviving children (biological, adopted or surrogate);

Only a close relative of the couple can be a surrogate mother, one who is able to provide a medical fitness certificate.
She should have been married, with a child of her own, and must be between 25 and 35 years, but can be a surrogate mother only once.

Even at the Bill stage, while there was a general murmur of appreciation, and some strident approval from infertility experts, there was some apprehension about the overly restrictive regulations.
Representations from these groups emerged even as Health Minister J.P. Nadda introduced the Bill in the House.
Others, primarily those involved in organ transplantation, pointed out how despite a similar, stringent law organ commerce continues to thrive in the country.
Brokers continue to operate, though with less temper and more covertly, sometimes with hospital authorities, to pull wool over the eyes of the appropriate authority and law enforcement officials.
Clearly the issue will have to be handled with a stern visage, even as sensitivities of people are factored in.