Evolution of Surrogacy Laws India

Surrogacy, which is a medical process of assisted reproduction whereby a woman agrees to carry a term of pregnancy for another person or couple, has always been a prevalent practice for many years across the globe. However, surrogacy has come a long way in India and the laws have significantly changed as compared to when surrogacy started in India.

In this blog, we will explore the evolution of surrogacy laws in India to try and take a look at the trajectory of changes that have shaped the Surrogacy Regulation Act 2021 as we know of it today.

THE BEGINNING OF A BREAKTHROUGH

Surrogacy isn’t a new practice in the country. However, it was largely unregulated by the state. The first successful delivery of a child born through In Vitro Fertilisation (IVF) in India opened up possibilities for surrogacy as an alternative reproductive technique (ART) for the Indian population. Despite this feat, the lack of regulations governing surrogacy resulted in the proliferation of unregulated surrogacy services offered by low-cost fertility clinics that could easily exploit underprivileged women.

It was only in 2005 that the Indian Council of Medical Research (ICMR) issued its first set of guidelines stating that surrogacy is legal and is only allowed for married heterosexual couples who are unable to conceive a child naturally.

SURROGACY (REGULATION) BILL 2016

Taking note of the various dangers of commercial surrogacy in India, advocate and activist Jayshree Wad filed a case at the Supreme Court to bring up the matter in front of the Indian government. This quickly led to the government banning surrogacy for foreign nationals and introducing the Surrogacy Regulation Bill of 2016.

Under this bill, the government only permitted altruistic surrogacy, wherein the surrogate mother does not receive any monetary compensation for carrying the child, except for the expenses incurred for medical procedures and insurance. The bill also prohibited single parents and same-sex couples from availing surrogacy services in India.

The Surrogacy Regulation Bill 2016 faced criticism from many corners of the country for its narrow definition of “family”, the controversial requirement of proving a couple’s “infertility” and its restriction on the use of surrogacy by single parents, and so on. The bill consequently lapsed after the dissolution of the 16th Lok Sabha in 2019.

SURROGACY (REGULATION) BILL, 2019

In July 2019, the Indian government tabled a revised version of the Surrogacy (Regulation) Bill in the Lok Sabha which sought to address some of the concerns raised by the earlier bill.

The new surrogacy bill clearly demarcated the conditions of permitting altruistic surrogacy and gave a new hope to reviving people’s accessibility to surrogacy services for intending parents who truly look forward to altruistic surrogacy for raising a family. The bill prohibited commercial surrogacy under all circumstances and cleared the way to make meaningful provisions for the welfare of the surrogate mother and the child.

The bill was passed by the Lok Sabha in 2019. However, it was not taken up by the Rajya Sabha before the dissolution of the 16th Lok Sabha. The bill lapsed once again.

SURROGACY (REGULATION) ACT 2021

After numerous attempts to regulate the practice of surrogacy in India and create a safe space for intending couples to seek help with their surrogacy journey, the Surrogacy (Regulation) Act, 2021 finally came into effect in April 2021, replacing all previous laws and regulations related to surrogacy in India.

The Act seeks to regulate the practice of surrogacy in a comprehensive and ethical manner, ensuring that the rights of all parties involved, including the surrogate mother, the intending couple, and the child, are protected. The Act also established a National Surrogacy Board to oversee surrogacy in India and impose punitive actions on parties getting involved in the commercialisation of surrogacy. You can read more about the current surrogacy laws in India here.

THE ASSISTED REPRODUCTIVE TECHNOLOGIES (ART) ACT 2021

In 2021, along with the introduction of the Surrogacy Regulation Act also came the ART Act which sought to address various ethical, legal, and social issues related to the process of surrogacy in India. Some of these include egg and sperm donation and pre-implantation genetic testing. It also set up a National Registry of Banks and Clinics of India under which all ART clinics and banks were mandated to register with their complete information to be stored in a centralized database maintained by the registry. The Act also regulated ART clinics, ART technological procedures and sought to ensure that the provisions of ART are not misused in any way.

Here are the three most common Assisted Reproductive Technologies used in surrogacy cases in India.

1. In vitro fertilization (IVF): This is the most common ART technique used in surrogacy. IVF involves fertilizing an egg with sperm outside of the body in a laboratory, creating an embryo. The embryo is then transferred into the uterus of the surrogate mother.

2. Gestational carrier: A gestational carrier is a woman who carries an embryo created using the eggs and sperm of the intended parents. The gestational carrier is then referred to as the surrogate mother. With couples that are unable to carry a pregnancy to term, this is a useful ART procedure.

3. Intracytoplasmic sperm injection (ICSI): This technique is used when the husband or male partner has a low sperm count. It involves injecting a single sperm directly into a woman’s egg to fertilize it. The fertilized egg is then transferred into the surrogate mother’s uterus.

CONCLUSION

Overall, the evolution of surrogacy regulation in India has been a long and complex process, marked by several debates and controversies. There are people for it and there are people against it. Despite addressing the various pitfalls in the current surrogacy laws in India that still exclude members of the LGBTQIA community from having children or the narrow definition of “infertility” disallowing a large chunk of the population from accessing surrogacy services in India, it is worthy to note that the Surrogacy (Regulation) Act, 2021 represents a significant step forward in regulating the practice of surrogacy and ensuring that it is conducted in a manner that is ethical, transparent, and safe for all parties involved.

CONTACT US

If you are exploring surrogacy laws in India and want to know how surrogacy works in India, our team of experts at Sunil Khattri & Associates can help you avail the best experience and expertise to start your altruistic surrogacy journey on the right footing!

Contact us today to learn more about altruistic surrogacy.

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