introduction

The word “Surrogacy” comes from the Latin word “Surrogatus” which means a
“substitute” or an alternate option. Surrogacy is an act of reproductive practice
where a third party conceives and gives birth to a child. The intending parents and
surrogate mother enter into a contractual arrangement which states that after the
child is born, the surrogate mother would hand over the child to the intending
parents without having any legal or parental obligation over the child.

Reproduction through surrogacy can be performed by two methods: Traditional and

Gestational. In Traditional Surrogacy, the surrogate mother is fertilized with the
semen of the male partner of the intending couple, whereas, in Gestational
Surrogacy, an embryo is created in a laboratory using the female partner’s eggs and
male partner’s semen of the intended couple. Then, that embryo is placed inside the
uterus of the surrogate mother. Unlike gestational surrogacy, in traditional
surrogacy, the child born is biologically related to the surrogate mother. Countries
like Russia, USA, Mexico, Ukraine, etc, have permitted commercial surrogacy
whereas France, Italy, Finland, etc have still restricted the use of surrogacy in all
forms.

Background

India suffered from the commercialization of surrogacy for a long period of time.
Until 2008, the commercialization of surrogacy was rapid in India. There was also no
statutory legislation to regulate this. Surrogacy was not socially accepted in the
country, but unethical commercialization was rampant, in ignorance of certain
guidelines provided by the Indian Council for Medical Research (ICMR). In 2002,
commercial surrogacy was legalised in India, but due to lack of strong statutory
legislation, the estimated rise of the commercial surrogacy industry was $400 million
per year, with more than 3000 fertility clinics across India.

[1] During that time women involved in surrogacy faced several hardships, such as
exploitation, poor living conditions, low cost fertility clinics, and unethical treatment.
Only after the controversial case of Baby Manji Yamada v. Union of India

[2], the ethical side of commercial surrogacy came under public scrutiny.

Over the last few years, surrogacy has gained immense importance in the country.
With the rise of 20-25 million infertile couples in the country, this Assisted
Reproductive Technology has been a huge help to childless couples.

[3]

Surrogacy Regulations in India

The first set of guidelines on surrogacy in India was the National Guidelines for
Accreditation, Supervision and Regulation of ART ??Clinics in India, formed in 2005. It
was not exclusively related to surrogacy, nevertheless provided some basic
guidelines to be followed in Assisted Reproductive Treatment (ART)

[4].
In 2009, the Law Commission of India took suo moto action to deal with regulation of
surrogacy in its 228th report. The report recommended guidelines to regulate
provisions for surrogacy with an aim to protect the interests of both the parties.
Transparency, privacy, financial support for the surrogate child and mother, ensuring
legitimacy of surrogate child, were some of the key features of the Law Commission
report. Finally, based on the report, a new Bill was formed to regulate the provisions
of surrogacy in 2010. However, there were several amendments made to this Bill
over the years.

The Surrogacy (Regulation) Bill, 2016 was introduced and passed by Lok Sabha but
rejected in Rajya Sabha with a suggestion to examine its provisions once again.
However, in 2019 the same bill was again introduced in Rajya Sabha without any
consideration to the previous suggestions. The Surrogacy (Regulation) Bill, 2019
banned commercial surrogacy and permitted only altruistic surrogacy, thereby
restricting surrogate mother to gain monetary compensation for her services. Such
restrictions reinforced traditional societal values of women’s work in the private
sphere and having no economic value. Once again, the Bill was not passed by Rajya
Sabha, and a Committee was formed to recommend changes to the legislation.

The Surrogacy (Regulation) Bill, 2020 was a significant improvement to the 2019 Bill,
as it discarded several old clauses, among which an important change was made to
limit the eligibility of surrogate mothers to only close relatives. The 2020 Bill allowed
“willing” women to be surrogates. However, there are still debatable clauses that do
not provide equal protection for both parties.

The Surrogacy (Regulation) Act 2021

The Indian Parliament, in early December 2021 passed two bills which became
landmark acts - Assisted Reproductive Technology (Regulation) Act and Surrogacy
(Regulation) Act. Earlier while the Surrogacy (Regulation) Bill was passed in Lok
Sabha, it could not be passed in the Rajya Sabha which instead relegated it to a
Parliamentary Standing Committee for deliberation. Finally, on 25th December 2021,
the Surrogacy (Regulation) Act, 2021 received President’s assent in order to regulate
the practice and process of surrogacy.

The key features of the surrogacy (Regulation) Act, 2021 are as follows:

 Commercial surrogacy is strictly prohibited and only altruistic surrogacy can

be practiced.
 No surrogacy clinics, unless registered under this Act, shall be involved in any
surrogacy activities or procedures; or employ any person who does not
possess qualifications prescribed in the Act.
 Every clinic which is conducting surrogacy procedures shall within a period of
sixty days, from the date of appointment of the appropriate authority, apply
for registration of their clinics. Registration shall be renewed after every 3
years.
 No surrogacy clinic, gynaecologist, embryologist, or any other medical
practitioner shall conduct or promote commercial surrogacy in any form.
Under the 2021 Act, only altruistic surrogacy is permitted.
 The intended couple shall be a legally married Indian man and woman, the
man shall be between the ages of 26-55 years and the woman shall be
between the ages of 25-50 years, and shall not have any previous biological,
adopted, or surrogate child.
  The surrogate mother shall be an Indian woman between the age of 35-45
years, intending to avail the surrogacy. Any woman intending to be a
surrogate mother cannot be a surrogate for more than once in her lifetime.
 When an intending couple has a medical necessitating surrogacy, shall obtain
a ‘Certificate of Essentiality/Infertility’ from the National/State Assisted
Reproductive Technology and Surrogacy Board.
 All the known side effects and after-effects of such procedure shall be well
informed to the surrogate mother. Also, written informed consent shall be
obtained from the surrogate mother, in the language she understands.
 There shall be established a Registry be called National Assisted Reproductive
Technology and Surrogacy Registry for the purpose of registration of
surrogacy clinics under this Act. Along with Centre, every State and Union
Territories shall establish a similar kind of Board for surrogacy matters.

According to the Surrogacy (Regulation) Act, 2021 any couple involved in

commercial surrogacy shall be punished for first offence with an imprisonment up to
5 years and fine up to Rs 50,000; and for subsequent offence, imprisonment shall be
up to 10 years and fine up to Rs 1,00,000. Any person, organisation or clinic involved
in exploitation of surrogate mothers or childrens born through surrogacy, shall be
punished with imprisonment for a term which may extend to 10 years and fine which
may extend to Rs 10 lakhs.

[5]

Constitutional Scrutiny of the Surrogacy (Regulation) Act, 2021

In India the major obstacle for surrogacy is balancing the different interests of both
parties. On one side, it is the duty of the State to prevent exploitation of surrogate
mothers and protect the rights of the unborn child, while on the other hand, the right
of the women to make their own reproductive choices and rights of the intended
parents. India’s regulation of surrogacy is still struggling to find a right balance
between these conflicting interests.

In Devika Biswas v. Union of India[6], the Apex Court held that Right to Reproduction
was an essential facet of the ‘Right to Life’ under Article 21 of the Indian
Constitution. Right to Reproduction includes the right to carry a baby, giving birth
and raising them. Thus restricting surrogacy to a particular group of age among
heterosexual couples only, creates a partial imbalance. The communities such as
single people, older couples, LGBTQ+ couples, are all completely denied the right to
have reproductive choices, which, arguably, is a violation of Article 21 as well as
Article 14 of the Indian Constitution.

Experts have argued that the conflicting provisions in the Surrogacy (Regulation)
Act, 2021 would not be able to protect the rights and interests of surrogate mothers
and intended parents. It has been feared that these shortcomings will contribute to
the development of an illegal market in surrogacy services. Concerns have been
raised regarding barriers such as age limitations and excluding queer couples, not
aiding in the progression of society, as surrogacy should be recognized as a
reproductive right available to all individuals irrespective of their place in the
community. India is going through a revolutionary time whereby the citizen’s
thinking process is radically shifting from patriarchal norms to a more feministic
ethos, hence there is skepticism about the current surrogacy legislation when it
comes to the progression of Indian society.

 The Surrogacy (Regulation) Bill, 2019 was introduced by the Minister of Health and
Family Welfare, Dr. Harsh Vardhan in Lok Sabha on July 15, 2019. The Bill 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.

 Regulation of surrogacy: The Bill prohibits commercial surrogacy, but allows

altruistic surrogacy. Altruistic surrogacy involves no monetary compensation to the
surrogate mother other than the medical expenses and insurance coverage during the
pregnancy. Commercial surrogacy includes surrogacy or its related procedures
undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic
medical expenses and insurance coverage.

 Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i)
for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for
commercial purposes; (iv) not for producing children for sale, prostitution or other
forms of exploitation; and (v) 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.

 A certificate of essentiality will be issued upon fulfilment of the following conditions:

(i) a certificate of proven infertility of one or both members of the intending couple
from a District Medical Board; (ii) an order of parentage and custody of the surrogate
child passed by a Magistrate’s court; and (iii) 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: (i) the couple being Indian citizens and married for at least five
years; (ii) between 23 to 50 years old (wife) and 26 to 55 years old (husband); (iii)
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; and (iv) 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: (i) a close relative of the
intending couple; (ii) a married woman having a child of her own; (iii) 25 to 35 years
old; (iv) a surrogate only once in her lifetime; and (v) possess a certificate of medical
and psychological fitness for surrogacy. Further, the surrogate mother cannot provide
her own gametes for surrogacy.

 Appropriate authority: The central and state governments shall appoint one or more
appropriate authorities within 90 days of the Bill becoming an Act. The functions of
the appropriate authority include; (i) granting, suspending or cancelling registration of
surrogacy clinics; (ii) enforcing standards for surrogacy clinics; (iii) investigating and
 taking action against breach of the provisions of the Bill; (iv) recommending
modifications to the rules and regulations.

 Registration of surrogacy clinics: Surrogacy clinics cannot undertake surrogacy

related procedures unless they are registered by the appropriate authority. Clinics
must apply for registration within a period of 60 days from the date of appointment of
the appropriate authority.

 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, (i) advising the central
government on policy matters relating to surrogacy; (ii) laying down the code of
conduct of surrogacy clinics; and (iii) 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 Bill include: (i) undertaking or
advertising commercial surrogacy; (ii) exploiting the surrogate mother; (iii)
abandoning, exploiting or disowning a surrogate child; and (iv) 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. The Bill specifies a
range of offences and penalties for other contraventions of the provisions of the Bill.