SURROGACY

An arrangement in which a woman (“the carrying mother”) agrees to bear a child and to hand
over that child, on birth, to another person or persons

surrogate mother: a) Any willing, ever-married woman between the ages of 25 and 35 who has
her own child may become a surrogate. b) May only sign up for surrogacy once in her lifetime,
but up to three attempts may be undertaken if embryo transfer does not take place. c) Must be
physically and mentally fit, as attested by a medical practitioner through certification. d)
Prohibited from providing her own gametes for surrogacy by the Act. e) Not receive any
compensation for carrying the child in her womb other than the necessary insurance and
medical costs. f) For a period of 36 months, insurance must cover any difficulties arising from
the delivery of the baby, including postpartum complications and even death

TYPES OF SURROGACIES

1. Traditional Surrogacy: In this type of surrogacy, it requires the surrogate mother to

be artificially inseminated with the intended father’s sperm. Here, the surrogate’s eggs
are fertilized with the intended father’s sperm. Thus, she is the genetic mother of the
child to whom she gives birth.

2. Gestational Surrogacy: Gestational surrogacy is a more modern recommended

surrogacy today and this method alone is performed by most surrogacy services
providers today. In this gestational surrogacy, an In-Vitro Fertilization (IVF) technique
allows fertility doctors to fertilize eggs from the intended mother using sperm from the
intended father. The sperm and eggs can also be supplied by donors for fertilization.
The fertilized eggs are then implanted into the surrogate’s uterus, therefore the surrogate
is not biologically linked to the surrogate baby, she is strictly the carrier

3. Altruistic Surrogacy: In an altruistic type of surrogacy arrangement, the surrogate

mothers are not compensated for their time, risk, or effort. However, this Altruistic
Surrogacy can apply to both traditional surrogacy and gestational surrogacy. This form
of surrogacy is the only legal type in certain countries.
In this method of altruistic surrogacy, a woman agrees to become a surrogate without
being compensated. In most surrogacy arrangements, the surrogate receives
compensation for her time and effort on top of general costs related to the pregnancy.
Altruistic surrogates are typically helping someone they know, such as a close friend or
family member, and will likely only receive reimbursement for medical costs.

4. Independent Surrogacy: In this kind of surrogacy usually independent surrogates are

women who volunteer to offer surrogacy services without enlisting the help of a
surrogacy service provider. However, this type of surrogacy arrangement is among the
riskiest due to the lack of screenings for protection.

5. Commercial Surrogacy: The term commercial surrogacy does not imply in any forms
of surrogacy. Its definition simply means any surrogacy arrangements mentioned above
(except altruistic surrogacy, where surrogate volunteers carry a pregnancy for intended
couples without compensation) can be defined as commercial surrogacy only if the
surrogate mother is compensated financially apart from its medical expenditure
reimbursement.
Reasons for surrogacy

A surrogacy arrangement may be considered if:

• a woman is unable to become pregnant or carry a pregnancy because she has had
a hysterectomy or is missing part of her uterus, ovaries or other parts of the genital
tract
• a woman has a health condition that makes pregnancy dangerous
• a same-sex couple wish to have a child
• a single man wishes to have a child
• a woman who has frozen embryos in storage dies and her male partner wishes to use
the embryos to have a child.

CHALLENGES

• The woman who has had the child or the one who is the surrogate is not treated well.
This means that they have extremely bad living conditions and are often not paid
even after the intended parents get the baby. The woman then has to take legal
recourse and other methods that are both time-consuming as well as costly. Her body
is just used to having the baby and then she is left without being compensated which
creates mental, physical, and financial hardships.
• Also, the commercialization of surrogacy has led to an increase in child trafficking.
Child traffickers could easily get a baby by often paying a meagre amount or not
paying at all.
• There have also been cases where the child’s health is extremely poor, such as low
weight is harmful to the child in the short as well as the long term.
• Surrogacy has led to the commodification of children, raising ethical difficulties. It
is well-known for breaking the bond between children and their mothers, as well as
interfering with natural processes.
• In addition to legal difficulties, surrogacy has psychological repercussions.
Surrogacy-related legal and psychological issues have surfaced in India on various
occasions. Women have been mentally harassed or intimidated in some instances of
surrogacy exploitation. They get forced into the decision or their decision to become
a surrogate is not respected.

LAWS
• Cases Laws
# Baby Manji Yamada vs Union of India (AIR 2009 SC Page 84)
Baby Manji Yamada was a child born to an Indian surrogate mother for a Japanese
couple who before a month of the child’s birth separated and the future of the child
was left in dark. The biological father, Ikufumi Yamada wanted to take the child to
Japan but the legal framework had no such provision for such a case nor did the
 Japanese government permit him to bring the child back home. In the end, the Supreme
Court of India had to intervene and the child was allowed to leave the country with her
grandmother. The biggest impact of the Baby Manji Yamada decision has been that it
spurred the government of India to enact a law regulating surrogacy.
The Supreme Court of India in 2008 held surrogacy permissible in India after Manji’s
case which increased the international confidence in going in for surrogacy in India.

• Jan Balaz Vs Anand Municipality

Gujarat High Court ruled that the birth certificate of the child born through surrogacy
will carry the name of the surrogated mother as against the biological mother and
the child would be granted a passport of India which certifies him as the Indian
Citizen and the surrogate mother in turn had to give the child to German couple in
adoption, who had sought the sercices of Indian surrogate mother.

The Supreme Court is still seized of an appeal against this decision and during its
hearing Supreme Court felt a grave need on the subject which made way for the
proposal of the bill of Parliament.

All these cases have provoked academic interest and has brought the surrogacy ban
bill into existence that rules out surrogacy rules for foreign citizens approaching
Indian mother. (As per the act only NRIs and Indians are allowed for surrogacy).

Surrogacy Regulation Bill (2019).

• The Bill defines surrogacy as a practice in which a woman gives birth to a child for an
intending couple with the intention of handing over the child after birth to the intending
couple.
• The Bill bans commercial surrogacy, but it does allow altruistic surrogacy. Altruistic
surrogacy does not involve monetary compensation to the surrogate mother other than
the medical expenses and insurance coverage during the course of the pregnancy.
Commercial surrogacy is surrogacy or such related procedures undertaken for a
monetary reward or benefit (in cash or in-kind) apart from the basic medical expenses
and insurance coverage.
• Surrogacy is allowed 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 disease or
condition specified through regulations.
• The intending couple should have the following issued by the appropriate authority:
• Certificate of essentiality
• Certificate of eligibility
• A certificate of essentiality will be issued if the following conditions are fulfilled:
• A certificate of proven infertility of 1 or both members of the intending couple
from a District Medical Board;
• An order of parentage and custody of the surrogate child passed by a
Magistrate’s court; and
 • Insurance coverage for sixteen months that cover postpartum delivery
complications for the surrogate mother.
• The certificate of eligibility to the intending couple will be issued upon fulfilment of
the following conditions:
• The couple should be Indian citizens and married for at least 5 years;
• the wife should be between 23 and 50 years old and the husband should be
between 26 and 55 years old;
• The couple does 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
• Other conditions that may be specified by regulations.
• To obtain a certificate of eligibility from the appropriate authority, the surrogate mother
has to be:
• A close relative of the intending couple;
• A married woman with her own child;
• 25 to 35 years old;
• A surrogate only once in her lifetime; and
• Having a certificate of medical and psychological fitness for surrogacy.
• Further, the surrogate mother cannot offer her own gametes for surrogacy.
• Surrogacy clinics can undertake surrogacy procedures only if they are registered by the
appropriate authority. Clinics must apply for registration within sixty days from the
date of appointment of the appropriate authority.
• The central government shall constitute the National Surrogacy Board (NSB) and the
state governments shall constitute the State Surrogacy Boards (SSB).
• Functions of the NSB include the following:
• Advising the union govt. on policy matters relating to surrogacy;
• Establishing a code of conduct for surrogacy clinics; and

• Supervising the functioning of SSBs.

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.

The Surrogacy (Regulation) Act, 2021

Section 3 of the Act provides the regulation of surrogacy clinics:

• Every surrogacy clinic must be registered under the Act to conduct the procedure of
surrogacy.
 • Commercial surrogacy is strictly banned and in no case, it will be allowed or
practised by surrogacy clinics, paediatricians, gynaecologists or any registered
medical practitioner.
• All the procedures related to surrogacy must be conducted at registered surrogacy
clinics and no person shall be employed on an honorary basis.
• In no case, sex selection is allowed or storage of human embryos or gamete is
allowed for the purpose of surrogacy.

Regulation of surrogacy and surrogacy procedures

As per Section 4, if a surrogacy clinic is not registered under this Act, it cannot participate in,
collaborate with, or assist in any way with activities related to surrogacy and surrogacy
procedures; or employ, cause to be employed, or solicit the services of anyone who lacks the
required qualifications, whether on an honorarium or for payment.

Any person, surrogacy clinic, paediatrician, gynaecologist, embryologist, or registered medical

practitioner shall not engage in, offer, promote, associate with, or use commercial surrogacy in
any form; or store a human gamete or embryo for surrogacy, with the exception of storage for
other legal uses like sperm banks, IVF, or medical research; or carry out sex selection for
surrogacy or cause it to be carried out.

Written consent of the surrogate mother

As per Section 6, the surrogate mother in question must be informed of all known side effects
and effects of these procedures, and the surrogate mother must provide written informed
consent in the language she understands.

Prohibition to abandon a child

Section 7 provides a prohibition to abandoning a child born out of surrogacy on the ground of
a birth defect, any genetic defect or any other medical condition whether in India or outside
India.

Rights of a surrogate child

Section 8 of the Act provides that the child born out of surrogacy will be considered to be a
biological child of the intending couple and shall have all the rights that a natural child shall
have under any law for the time being in force.

Section 10 of the Act describes that no organization or person can force a surrogate mother to
abort at any stage except under conditions that may be prescribed in certain circumstances.
CHELLANGES OF THE ACT

• Reinforces patriarchal norms:

The Act reinforces the traditional patriarchal norms of our society that do not attach
any economic value to women’s work and directly affect women’s basic reproductive
rights under Article 21 of the Constitution.
• Denies legitimate income to surrogates:
• Emotional Complications:
In an altruistic surrogacy, having a friend or relative as a surrogate mother can lead to
emotional issues not only for the intended parents but also for the surrogate child
because there is a great risk to the relationship during the surrogacy process and after
the birth.
• Exclusion of LGBTQ+ community.
•

Assisted Reproductive Technology (ART) Act

The ART Act was introduced in the Lok Sabha in September 2020 and has been referred to the
Standing Committee for further consideration. Subsequently, together with the Surrogacy Act,
this Act was passed in both houses at the winter session of parliament in December 2021. This
law also entered into force in January 2022.

What is ART

ART is defined as any technique used to get positive pregnancy results by manipulating a sperm
or egg cell outside the human body and transferring the embryo into the female reproductive
system. These include sperm donation, in vitro fertilisation (IVF), in which the sperm are
fertilised in a laboratory, and surrogacy, in which the child is not biologically related to the
surrogate.