Context: The Supreme Court has reserved its verdict in a group of petitions challenging the age cap for couples seeking to have a child through surrogacy. The petitioners are especially those couples who had started the surrogacy process before the enactment of the present legal framework for surrogacy.
Relevance of the Topic: Prelims: Key facts about Surrogacy (Regulation) Act, 2021. Mains: Challenges In Surrogacy (Regulation) Act, 2021.
Surrogacy in India: Concept and Legal Provisions
- Surrogacy (Regulation) Act, 2021 defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
- Surrogacy can be classified into:
- Altruistic surrogacy entails no financial compensation for the surrogate.
- Commercial surrogacy involves paying the surrogate for bearing the child, implying a profit
- Compensated surrogacy simply involves covering the incurred expenses and loss of wages.
- The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021, prescribe the legal framework for surrogacy.
About Surrogacy (Regulation) Act, 2021
- The Act prohibits commercial surrogacy, but allows altruistic surrogacy.
- Rationale: To prevent the commodification of reproductive labour and to impose procedural safeguards to ensure that surrogacy is used only in cases of medical necessity.
- The Act permits surrogacy to:
- Intending couple who suffer from proven infertility (Intending woman must be between 23-50 years of age; fathers must be between 26 and 55).
- Indian woman who is a widow or divorcee between the age of 35 to 45 years and who intends to avail the surrogacy.
- Surrogacy clinics are prohibited from conducting surrogacy or any associated procedures unless they receive registration approval from the relevant authority.
- The National Surrogacy Board (NSB) and State Surrogacy Boards (SSBs) shall be established by both the central and state governments, respectively.
- For a surrogate mother to be eligible for a certificate from the appropriate authority:
- she must have a familial relationship with the intending couple
- not have served as a surrogate mother previously
- possess a certificate confirming her medical and psychological health
- be an ever-married woman having a child of her own, and be 25 to 35 years old.
- The surrogate mother is not allowed to use her own eggs for the surrogacy process.
- An order concerning the parentage and custody of the child to be born through surrogacy, has to be passed by a Magistrate's court.
- Insurance coverage for a period of 36 months covering postpartum delivery complications for surrogate.
Issue of Age Restriction on Surrogacy:
In Devika Biswas v. Union of India, the Supreme Court held that Right to Reproduction is an essential facet of the ‘Right to Life’ under Article 21 of the Indian Constitution.
- The legal framework for surrogacy has a certain age limit for the married couple or single married widowed women intending to have a child through surrogacy.
- The petitioners argue that the age limit creates an unreasonable classification:
- violating Article 14 of the Constitution.
- interferes with reproductive autonomy which has been recognised as an aspect of personal liberty under Article 21.
The government has defended the age restrictions on grounds of medical safety, citing that the statutory age caps are based on recommendations from medical experts, and align with practices in reproductive health. The argument is that:
- Surrogacy age limits align with natural reproductive timelines and are necessary for protecting the welfare of the child.
- Advanced parental age influences both an unborn child’s health through genetic and epigenetic changes, and also the filial love that a child requires for 20 years of their life.
Challenges In Surrogacy (Regulation) Act, 2021:
- Exclusionary: The provisions deny this opportunity to LGBTQ+ persons, live-in couples, unmarried women and single parents. The definition of single women excluding unmarried women is arbitrary and violative of Articles 14 and 21 of the Constitution.
- Altruistic surrogacy is Paternalistic: It expects a woman to go through the physical and emotional tolls of surrogacy free of cost and only out of ‘compassion’. Thus reinforcing the age old patriarchal norm of no economic value to the women’s work.
- It does not respect the bodily autonomy of women: By shifting from right based to need based approach, it snatches away the right of a woman to decide upon her reproductive choices. Further, it is violative of her fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution.
- Impetus to black marketing: Blanket ban on commercial surrogacy may lead to creation of unregulated, exploitative underground/black markets.
- Does not define close relative: The Act does not define ‘close relative’, which is a condition to be fulfilled by the surrogate mother. Thus, scope for confusion and exploitation of loop holes is always there.
- Reproductive liberty to the couples: Several restrictions in form of eligibility criteria etc. restrict the surrogacy option to intending couples, which is a denial of reproductive liberty to them.
- No power to make a decision on abortion: The Intending couple does not have final say in the consent to abort a surrogate child, even if the child being born out of a surrogacy arrangement is at the risk of physical or mental abnormalities.
- Identity and emotional aspect: Several times couples do not want to reveal their plans of opting for surrogacy, now putting the condition of close relative to be a surrogate clearly ignores this aspect and restricts the choices. Further, familial bonds and interaction may involve high emotional complications between surrogate mother and intended parents.
- Definition of infertility: Infertility is restricted to failure to conceive, does not cover other issues that a woman may face in delivering a child.
Way Forward
- The government should remove the time limit for IVF treatment before permitting surrogacy, taking into consideration medical circumstances and concerns that deter some women from childbirth.
- The issue of postpartum depression should be addressed by implementing provisions for its management, and maternal benefits should be accessible to all mothers.
- The government should provide a clear definition of close relative and infertility.
- With appropriate safeguards, expanding the surrogacy sector to include commercial surrogacy will benefit individuals who long for the experience of parenthood.
- The government should include live-in couples, unmarried women, and single parents in this Act, as Right to Reproduction is a fundamental right.