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Surrogacy Law

Context:

A person has approached the Delhi High Court to question why marital status, age or gender should be the criteria for prohibiting someone from commissioning a surrogacy.

  • The petitioner have challenged in the court the surrogacy law and the Assisted Reproductive Technology (Regulation) Act, 2021 which provides a regulatory framework for surrogacy.

Relevance:

GS II- Government policies and Interventions

Dimensions of the Article:

  1. Issues raised by the petition
  2. About Surrogacy (Regulation) Act, 2021
  3. Eligibility criteria for intending couple
  4. Eligibility criteria for surrogate mother
  5. Offences and penalties


Issues raised by the petition

  • Single males are currently not allowed to have children through surrogacy, and married women can only use surrogacy services if they are unable to have children due to medical reasons.
  • Women must be between the ages of 35 and 45 and widowed or divorced to be eligible for surrogacy services.
  • Surrogacy is only available to women between the ages of 25 and 35 who are married and have at least one biological child.
  • According to their petition, the laws also require a surrogate to be genetically linked to the couple that wishes to conceive a child through this method.
  • The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.
    • Thus, the right to privacy of every citizen or person affecting a decision to bear or beget a child through surrogacy cannot be taken away.

About Surrogacy (Regulation) Act, 2021

The Act prohibits commercial surrogacy, but allows altruistic surrogacy. 

  •  In altruistic surrogacy, the surrogate mother receives no monetary remuneration other than medical bills and insurance coverage during the pregnancy.
  • Commercial surrogacy refers to surrogacy or associated treatments that are performed for a monetary gain or reward (in cash or kind) that exceeds the cost of basic medical care and insurance coverage.
Surrogacy is permitted when it is:
  • For intending couples who suffer from proven infertility;
  • Altruistic
  • Not for commercial purposes
  • Not for producing children for sale, prostitution or other forms of exploitation
  • For any condition or disease specified through regulations.

Eligibility criteria for intending couple

  • The intending couple should have a‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
  • certificate of essentiality will be issued upon fulfilment of the following conditions:
    • A certificate of proven infertility of one or both members of the intending couple from a District Medical Board;
    • An order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
    • Insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
  • The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions:
    • The couple being Indian citizens and married for at least five years;
    • Between 23 to 50 years old (wife) and 26 to 55 years old (husband);
    • They do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness;
    • Other conditions that may be specified by regulations.

Eligibility criteria for surrogate mother

  • To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
    • close relative of the intending couple;
    • married woman having a child of her own;
    • 25 to 35 years old;
    • surrogate only once in her lifetime;
    • Possess a certificate of medical and psychological fitness for surrogacy.
  • Further, the surrogate mother cannot provide her own gametes for surrogacy.

National and State Surrogacy Boards

The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.

Functions of the NSB include, 

  • Advising the central government on policy matters relating to surrogacy;
  • Laying down the code of conduct of surrogacy clinics;
  • Supervising the functioning of SSBs.

Parentage and abortion of surrogate child

  • A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. 
  • An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.
  • This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.  
  • Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

Offences and penalties

  • The offences under the Act include:
    • Undertaking or advertising commercial surrogacy;
    • Exploiting the surrogate mother;
    • Abandoning, exploiting or disowning a surrogate child; and
    • Selling or importing human embryo or gametes for surrogacy.
  • The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.

-Source: The Hindu


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