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Surrogacy Regulation Act 2021: An Overview of India's New Surrogacy Laws

In August 2021, the Indian Parliament passed the Surrogacy (Regulation) Act, 2021. This new law aims to regulate surrogacy practices in India, replacing the earlier Surrogacy (Regulation) Bill, 2019. It represents a significant change in India's approach to surrogacy, aiming to protect the rights of both surrogates and intended parents.

Understanding Surrogacy

Surrogacy is when a woman carries and delivers a child for someone else. India has been a popular destination for surrogacy due to lower costs and easier regulations. However, concerns about surrogate exploitation and legal protection have led to calls for stricter regulations.

Types of Surrogacy

Altruistic Surrogacy: The surrogate mother is not paid except for medical expenses. Her main motivation is to help others have a child.

Commercial Surrogacy: The surrogate mother is paid for her service, which can exploit vulnerable women and commercialize the reproductive process.

Ethical and Legal Concerns of Unregulated Surrogacy

• Exploitation: Without regulations, surrogate mothers can be mistreated.
• Lack of Legal Protection: Unregulated surrogacy can lead to legal disputes and uncertainty.
• Commercialization: Paying surrogates can exploit them for financial gain.
• Reproductive Tourism: People may seek surrogacy in countries with lax laws, causing ethical and legal issues.

Evolution of Surrogacy Laws in India

India became a popular surrogacy destination due to affordability and good medical infrastructure. However, previous laws were insufficient. The Surrogacy Regulation Act 2021 aims to provide a robust framework to protect surrogate mothers and intended parents, promoting ethical practices.

Key Provisions of the Surrogacy Regulation Act 2021

Eligibility: Intended parents must be Indian citizens married for at least five years and unable to conceive naturally. Surrogates must be close relatives, aged 25-35, and have given birth before.

Altruistic Surrogacy Only: The act allows only altruistic surrogacy, forbidding commercial surrogacy.

National Surrogacy Board: A board will supervise and regulate surrogacy practices, granting licenses to clinics.

Protection of Surrogates: Surrogates are entitled to health checks, insurance, and can withdraw from the arrangement before embryo transfer.

Challenges to the Act

The act is being challenged in court by individuals excluded from using surrogacy. They argue it violates their constitutional rights to privacy and reproductive autonomy. Critics say it fails to balance protection with reproductive rights and restricts available surrogates, complicating the process for intended parents.

Reproductive Autonomy

The act restricts reproductive choices for various groups, violating the right to reproductive autonomy under Article 21 of the Constitution.

Way Forward

To balance interests and respect reproductive rights, the act needs a more inclusive and balanced approach. It should address women's work, provide legitimate income, consider emotional complications, ensure third-party involvement, and regulate service prices.