Surrogacy in India: Navigating Legal Challenges and Ethical Conflict

Introduction

Surrogacy in India has gained momentum and popularity since the early 2000s. Commercial surrogacy was legalized in 2002. It became successful, and intended parents started coming from different parts of the world because the cost of services in the medical sector was relatively low and available. Surrogacy laws in India have remarkably changed in the last few years, with a new Surrogacy (Regulation) Act of 2021[1] enacted. This act has outlawed commercial surrogacy and legitimized only altruistic surrogacy, under which selection requirements are very strict, applicable mostly to married Indian couples. Changes in surrogacy laws in India seem to serve the objectives of safeguarding the interest of surrogate mothers and children, too, and may help remove exploitation. Surrogacy is a type of reproductive agreement whereby a female participant, referred to as the surrogate, agrees to carry and deliver for another individual or couple the birth of a child while considering that after being delivered, the child shall be handed over to the intended parents.[2]

Historical Background

Surrogacy comes to India from ancient times; but legal formalization came in 2002 when commercial surrogacy was legalized for the promotion of medical tourism, and India became a destination site for international couples getting reproductive services because of their affordability. This time, the country lacked all-inclusive regulations, which increased serious ethical concerns, such as possible exploitation risks, and the industry blew up into a $2 billion market at the start of the 2010s[3]. Thereby, mounting moral and practical dilemmas which compelled the government to take up several regulatory measures. The Surrogacy (Regulation) Bill was enacted in 2019 that eventually brought a stop to commercial surrogacy and permitted altruistic surrogacy among infertile Indian couples[4]. This act had very stringent eligibility criteria thereby further limiting the surrogacy services to only married couples who had been unable to conceive for at least five years. The movement toward altruistic surrogacy aimed at addressing exploitation concerns even as it paved way to a controlled playing ground to the intended parents and surrogates.

Current Legal Framework

The Surrogacy (Regulation) Act, 2021 specified that only altruistic surrogacy is permitted and wherein the surrogate mother cannot be compensated except for medical expenses and insurance coverage. Eligibility conditions for any couple looking to undertake surrogacy involve infertile couples who meet the eligibility test of infertility along with a valid marriage tie while the surrogate must also be a close relative. The Act seeks to establish a regulatory framework with an objective to suppress unethical practices in the surrogate scenario. Only the married couples, who have been wedded for five years or more and can produce documentary evidence of infertility, are covered by the existing laws to use services of surrogates. The surrogate has to be a married female, who is between 25-35 years of age and should have had at least one biological child. So much rigorous eligibility criteria deny the rights to many people including single parents, homosexual couples and unmarried couples, which raise questions of illegal discrimination.

Recent Changes and Challenges

The Surrogacy (Regulation) Rules in India, have been made fresh: The rules were issued including married couples who suffer from a medical condition and can use donor gametes for surrogacy; the amendment goes in reversal of the initial ban that was issued initially.[5] It has to be certified by a District Medical Board that no less than one partner suffers from a medical condition that requires a donor egg or sperm.[6]
However, the laws state that at least one gamete of the intending parents is required, leaving out those where both are incapable of providing biologic donation. Additionally, single women, widows, and divorcees are required to use their eggs along with donor sperm as they are not allowed to use their surrogate or other female embryos.[7] This would safeguard the reproductive rights of the surrogate couples while retaining the centre stage of biological relatedness as created by surrogacy agreements.

Exclusion of Single People and LGBTQIA+ from surrogacy

The Surrogacy (Regulation) Act, 2021 in India has restricted access to surrogacy only to married heterosexual couples and excludes single individuals and LGBTQ+ couples, which presents a huge violation of their reproductive rights and equity before the law. This exclusion has been criticized for strengthening archaic notions of the family composition wedded to the traditional marriage therefore excluding a wider set of individuals who want to have a child. Litigation concentrated on the discriminatory nature of the Act with much cries challenging its legitimacy in disallowing single women but simultaneously permitting access to widows and divorcees to surrogacy. The critics argue that these curbs are not only unfair but betrays the full understandings of diversity of family and individual rights in modern society, especially after homosexuality decriminalization. As the legal battles start leading to a cacophony, there is a chance that the judiciary might, with the jurisprudence figuring out such inequalities, make surrogacy in India more holistic.

Comparative Study of Surrogacy Laws among Various Countries

Cases on Surrogacy:

Baby Manji Yamada v. Union of India and Anr.[11]

This occurred in the case of Baby Manji Yamada, a Japanese couple who turned to surrogacy in India. When the baby was born, the couple split and the father appeals for custody. Indian law, however, did not allow a single father to adopt a girl child. The Supreme Court of India gave custody of the baby to her grandmother stating what India needed badly was a proper legal framework relating to surrogacy in the light of problems in obtaining custody.

Jan Balaz v. Anand Municipality[12]

Here, German national Jan Balaz had made a surrogacy arrangement in India and then applied for the grant of Indian citizenship for his twin babies sired through the surrogacy process. The Gujarat High Court declared that the twin children were entitled to Indian citizenship on grounds of maintaining the legal and emotional rights of the child rather than those of the biological parent or surrogate. This case brought to attention that children of surrogate origin should take into consideration the status they are born into and raised questions regarding the existing legal framework with regard to citizenship.

Ethical Issues

Surrogacy raises very important ethical concerns, that is, on the probable exploitation of vulnerable women, especially including the economically disadvantageous woman who is encouraged into such surrogacy contracts based on material gain. In this way, it has led to commodification of human life where babies become products rather than human beings, thereby reducing their dignity. Even though all these issues are tries to be solved by banning commercial surrogacy but the problems don’t end here. Issues of autonomy over the body also come into the picture here as surrogates might be coerced at any juncture for decisions regarding their body during pregnancy and raise ethical questions about whether they have given consent to taking full control of the surrogacy process. Psychological implications about detachment from a child that they carried also add to this strained ethical landscape. Finally, legal complexities and international differing regulations that have raised ethical concerns about rights and responsibilities for parents because of the way different places would treat surrogates and intended parents.

Conclusion

The surrogacy laws in India create that messy tapestry of progress and restriction, supposedly designed to safeguard the rights of surrogate mothers and intended parents alike whilst furthering ethical considerations; but recent amendments holding out most firmly for altruistic arrangements and very tight eligibility criteria have rather raised some crucial questions about inclusivity and equity in access to reproductive technology. For example, can a surrogacy law that restricts such practice only to married heterosexual couples really support the kinds of families people have today? And do we not, in banning commercial surrogacy, really protect vulnerable women, or are we merely driving an important service into the shadows where exploitation can still flourish? At this juncture, when India is at the crossroads of its decisions, the main question-lies in exactly how laws can move forward to protect the better interest of two parties without being unjust to the reproductive autonomy of those who wish to procreate and build a family?

Reference(s):

[1] Surrogacy (Regulation) Act, 2021, Acts of Parliament (India)

[2] R. S. Sharma. “Social, Ethical, Medical & Legal Aspects of Surrogacy: An Indian Scenario.” PubMed Central (PMC)_(October 7, 2024, 10:00 AM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4345743/.

[3] hksspr. “The Indian Ban on Commercial Surrogacy – HKS Student Policy Review.” HKS Student Policy Review_(September 07, 2024, 7.30 AM), https://studentreview.hks.harvard.edu/the-indian-ban-on-commercial-surrogacy/.

[4] Ibid.

[5] Aniket Aryan. “Surrogacy (Regulation) Rules in India 2024 | SRIRAMs IAS.” sriramsias.com_(October 7, 2024, 10:00 AM), https://www.sriramsias.com/upsc-daily-current-affairs/surrogacy-regulation-rules-in-india-2024/.

[6] “Amendment to Surrogacy Rules.” Drishti IAS_(October 7, 2024, 10:00 AM), https://www.drishtiias.com/daily-updates/daily-news-analysis/amendment-to-surrogacy-rules.

[7] Bindu Shajan Perappadan. “Centre Amends Surrogacy Rules, Allows Couples with Medical Conditions to Use Donor Gametes.” The Hindu_(October 6, 2024, 10:30 PM), https://www.thehindu.com/news/national/centre-amends-surrogacy-rules-allows-couples-with-medical-conditions-to-use-donor-gametes/article67878622.ece.

[8] Surrogacy Arrangements Act, 1985, Acts of Parliament (United Kingdom)

[9] Children’s Act of 2005, Act no. 38 of 2005, Acts of Parliament (South Africa)

[10] Article 1458, Greek Civil Code, 1946, Created by National Assembly of the Hellenic Republic of Greece (Greece)

[11] Baby Manji Yamada v. Union of India, AIR 2009 SC 84

[12] Jan Balaz v. Anand Municipality, AIR 2010 Guj 21