Surrogacy is an imperative process for the couples, who are not able to have the vouchsafed wonderful capacity of being parents. The history of the surrogacy in India also discusses this concept in ancient Hindu mythology. Tracing back to Mahabharata, when Gandhari delivered a semi solid material on the place of delivering a child, Mahairishi Vyas further divided that semi solid material into 100 pieces and planted them in different pans. Thus the 100 Kauravas were born.
The positive aspect of the surrogacy process brings happiness to the couples who are infertile. Contrary to this the negative aspects are the cause of many legal, social ethical and moral issues in society of the country like India.
Right to reproduce their young one is unlettered right of an every individual. The absence of a child is considered as a stigma to the family.
According to the WHO Report the incidence of infertility across the globe including India is around 10-15 percent. Previously the only option for the couples who were infertile was adoption. Due to the advancement in the medical facility, infertility areas and artificial human reproductive technologies surrogacy is feasible now. Among all the methods like insemination, In-vitro fertilization, embryo transfer etc., surrogacy has ended up to be the more popular.
According to Black’s Law Dictionary, Surrogacy is an agreement where a woman agrees to be artificially inseminated to carry with the semen of another woman’s husband.
There are two Types of Surrogacy:
- Commercial Surrogacy– the surrogate mother is remunerated and also provided the required medical expenses during the course of the surrogacy.
- Altruistic Surrogacy– In this particular type of surrogacy the surrogate mother does not receive any type of financial remuneration for her pregnancy except the essential requirement for her medical expenses.
LEGAL IMPLICATION IN INDIA
The past year, brought about two important legislations:-
- The Surrogacy (Regulation) Act, 2019 (SR Act) and
- The Assisted Reproductive Technology Act (ART Act), 2021
Both these legislations are intended to curb unethical surrogacy practices, and, to regulate assisted reproductive technology services, respectively.
The SR Act aims to regulate surrogacy practices in the country, by way of establishment of several authorities at the central and state levels, for effective monitoring and adjudication. In this regard, it determines the scope of surrogacy, rights available to intending parents and surrogates, protocol to be followed by medical institutions and medical professionals, along with the establishments of such board/authorities.
- Surrogacy procedures have been limited to altruistic purposes alone, placing strict prohibitions against commercialization.
- Access and uptake of both legislation is limited only to married heterosexual couples and single women. Under the SR Act, intending couples are required to be between the ages of 23 to 50 if female and 26 to 55 if male, to be considered ‘eligible’ to avail surrogacy services. Additionally, the couple must demonstrate that they do not have any children, whether biological, adopted or through surrogacy, with the exception of a child who is physically/mentally challenge.
- As established under the SR Act, the National Registry, National/State Board and Appropriate (Central/State) derive their power/duties and responsibilities from the ART Act. Briefly, the National Registry is the central database consisting of details of all clinics and banks undertaking such services, facilities provided to patients thereby, and necessary outcomes of such aid provided.
- Abortion under the SR Act is subject to written consent of the surrogate and subsequent authorization of the appropriate authority. No time period for such authorization has been specified, and it begets the question – why an individual’s right to body autonomy (a right under Article 21) has been subjected to government approval.