Understanding the Surrogacy (Regulation) Act 2021

INTRODUCTION

In March 2021, India witnessed a significant development in its legal landscape concerning surrogacy with the enactment of the Surrogacy (Regulation) Act. Being the first step towards standardizing and regulating surrogacy practices within the country, this act single handedly changed the fate for many aspiring parents in India. However, amidst its implementation, various challenges and debates have emerged, prompting recent amendments and interpretations by the Supreme Court. 

Let's dive deeper into the Surrogacy (Regulation) Act 202 - its provisions, the benefits, challenges, recent amendments and the way forward for surrogacy in India. 

Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 was the first and foremost step in recent times that outlined specific provisions to govern surrogacy arrangements for all parties involved in India, making it an alternate possibility to conventional pregnancy for many aspiring families. 

 At the crux of the Surrogacy Regulation Act lies the Indian government’s emphasis on Altruistic Surrogacy as the ONLY legal and viable option for surrogacy in India. 

In other words, only altruistic surrogacy wherein the surrogate, also known as a gestational carrier, carries and delivers a child for another person or couple known as the intended parents without the involvement of any monetary compensation apart from that which covers the basic medical expenses and insurance coverage of the surrogate during the term of the pregnancy, is legal and allowed in India.

The regulations also come with certain eligibility criteria for discerning who is fit to opt for surrogacy services. 

• Intended parents must be legally married Indian heterosexual couples between the ages of 26 to 55 years old who have been in a relationship for over 5 years. Other than this, a couple having obtained an ‘essential’ certificate of proven infertility from a District Medical Board is also eligible for availing altruistic surrogacy in India. 

• Both partners must not have any biological, adopted, or surrogate children prior to the surrogacy arrangement.

• Widows or divorcees between the ages of 35 to 45 years may also avail surrogacy if they have medical conditions necessitating this option.

• Some exclusions that don’t fall in the eligible category include unmarried women, single men, live-in partners, and same-sex couples. 
  

Apart from standardizing surrogacy rules, the Surrogacy (Regulation) Act 2021 established a National Surrogacy Board to oversee all surrogacy cases in India and hold offenders accountable that are found to be involved in commercial surrogacy cases. 

RECENT AMENDMENTS AND SUPREME COURT INTERPRETATIONS

Since the passing of the Act, there have been many changes and amendments to make surrogacy regulations as representative of the modern issues cropping up in this space as possible. 

For example, the act earlier disallowed the use of donor gametes and strictly stated that the child born out of surrogacy must result from the embryo sourced from the intended parents. However, the most recent amendment in February 2024 makes the use of donor gametes legal in cases of medical exigencies such as proven infertility. If you want to know more about this and similar cases resolved by Sunil Khattri & Associates, then check out our blogs here.

Another recent development in the Indian surrogacy space is the government’s involvement in evaluation and enhancement of the Act. In January 2024, the Union Health Ministry went on to request all states and union territories to provide data on the total number of couples, single individuals, and unmarried women who have successfully utilized surrogacy services since the enactment of the act in 2021. With concrete data, the Centre wants to evaluate the effectiveness of the legislation and make suitable changes to the same if needed. 

SURROGACY REGULATION ACT FOR INTENDING PARENTS

The Surrogacy (Regulation) Act 2021 has been a major game-changer bringing significant impact for intending parents and couples in India, particularly those grappling with infertility. Let's explore how these legislative measures impact them:

• Legal Framework and Regulations

Before the enactment of the Surrogacy (Regulation) Act, surrogacy practices in India were largely unregulated, leading to various ethical and legal concerns. The introduction of the Act and the subsequent regulation of ART services provide a comprehensive legal framework to govern surrogacy arrangements in the country. 

Intending parents now have clearer guidelines and regulations to follow, ensuring transparency, accountability, and legal protection throughout the surrogacy process.

• Clarity of Eligibility Criteria

The Act lays down specific eligibility criteria for intending couples, including age restrictions and marital status requirements. All terms of the agreement are clearly laid out in a surrogacy agreement. 

This ensures that surrogacy is accessible to couples who genuinely wish to pursue it with all available information available to them from expert legal counsel, such as that offered by Sunil Khattri & Associates. 

• Ban on Commercial Surrogacy

The Surrogacy Regulation Act only promotes altruistic surrogacy, where no monetary transactions take place between the surrogate mother and the intending parents. This ensures a sharp shift away from commercial surrogacy to safeguard against exploitation and protect the interests of all parties involved. 

The Surrogacy (Regulation) Act 2021 is a significant milestone in transforming surrogacy practices in India. With the introduction of essential safeguards to protect the rights of all parties involved, it also makes way for impressive development in the medical, legal and social space of India. 

As the legal landscape continues to evolve, it is imperative for intending parents to stay informed, seek legal guidance, and explore all available options within the confines of the law to realize their dreams of parenthood. For any guidance regarding surrogacy in India, our team of experts at Sunil Khattri & Associates is ready to provide you with tailored assistance at every step of the way.  

Remember that your dreams may be well within your reach, right on the other end of a phone call! Contact us today!