Introduction

India is considered one of the top medical tourism destinations in the world as it provides advanced medical technologies and infrastructure, a low waiting period, and skilled doctors, all at an affordable cost. Therefore, both non-resident Indians and foreigners flock to India for assisted reproductive remedial measures, such as surrogacy.

Surrogacy was legalised in India in 2002 through the National Guidelines for the Accreditation, Supervision and Regulation of Assisted Reproductive Technology (ART) Clinics. However, the guidelines were not stringent and did not differentiate between altruistic surrogacy and commercial surrogacy. Unlike altruistic surrogacy where the surrogate mother does not receive any monetary benefits, in commercial surrogacy, the intended couple usually provides monetary benefits to the surrogate mother, thus, leading to an increase in unregulated commercial surrogacy. Due to the lack of an adequate legal framework to regulate the commercialisation of surrogacy, women have faced many hardships such as exploitation, poor living conditions, low-cost fertility clinics, unethical medical treatment, etc in the past.

Hence, with an aim to ban commercial surrogacy, the Surrogacy (Regulation) Act, 2021 (“Act”) was enacted and came into force on 25 January 2022.

Salient Features

As per Section 2(1)(zd) of the Act, surrogacy is the process where a woman bears and gives birth to a child for an intending couple or an intending woman with the intention of handing over such child to the intending couple or intending woman after the birth.

Prohibition of surrogacy clinics

• no surrogacy clinic shall conduct any activities relating to surrogacy unless registered under the Act, and surrogacy shall only be conducted in a surrogacy clinic;
• no surrogacy clinic shall employ unqualified persons;
• no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician, or embryologist shall make any advertisements promoting commercial surrogacy or seeking surrogate mothers or inducing women to become surrogate mothers;
• no surrogacy clinic or registered practitioner shall cause an abortion during the process of surrogacy without the written consent of the surrogate mother and the authorisation of the appropriate authority concerned, in compliance with the provisions of the Medical Termination of Pregnancy Act, 1971;
• no surrogacy clinic, registered medical practitioner, gynaecologist, or paediatrician shall store a human embryo for surrogacy procedure;
• no surrogacy clinic, registered medical practitioner, gynaecologist, paediatrician or, intending couple shall conduct sex selection for surrogacy; and
• surrogacy shall only be for altruistic purposes.

Further, the Surrogacy (Regulation) Rules, 2022 (“Rules”), provide guidelines to be followed by surrogacy clinics such as requirements regarding the minimum number of staff, the qualification of staff, and the equipment used in the clinic. The Rules also provide the manner of registration and inspection of surrogacy clinics by the regulatory authorities under the Act.

Regulation of surrogacy procedures

As per Section 4(iii)(a), (b) and (c), a surrogacy procedure shall only be conducted if the intending couple or intending woman has a certificate of essentiality and the surrogate mother has a certificate of eligibility. The intending couple or intending woman shall not abandon the child, born out of a surrogacy procedure, for reasons such as any genetic defect, birth defect, or any other medical condition.

A certificate of essentiality is provided to the intended couple or the intending woman based on a few conditions as stipulated under Section 4(iii)(a):

A certificate of eligibility is provided to the intending couple and surrogate mother based on the fulfilment of the following conditions as per Section 4(iii)(b) and (c):

The surrogate mother shall be informed of the whole procedure in the language she understands, along with all the side effects. As per the Rules, the surrogacy procedure can be attempted for a maximum of three times on a surrogate mother. Abortion, during the process of surrogacy, shall be as per the Medical Termination of Pregnancy Act, 1971.

Medical conditions necessitating gestational surrogacy

As per Rule 14 of the Rules, a woman needs to meet either of the below criteria to opt for gestational surrogacy:

• the woman either has no uterus (including a surgically removed uterus due to a medical condition), a missing uterus or has an abnormal uterus;
• an intending couple or a woman, who is unable to conceive after multiple in-vitro fertilization or intracytoplasmic sperm injection attempts;
• multiple pregnancy losses resulting from an unexplained medical reason;
• unexplained graft rejection due to exaggerated immune response; or
• any illness that makes it impossible for a woman to carry a pregnancy to viability or pregnancy that is life threatening.

Registration of surrogacy clinics

As per Section 11 (3) of the Act, surrogacy clinics which have already been established before the commencement of the Act, are required to apply for registration of the clinic within 60 days from the date of appointment of the appropriate authority. If the clinic is not registered, it shall not be allowed to conduct any counselling or medical procedures after the expiry of 6 months from the date of commencement of the Act.

A clinic shall only be registered on the satisfaction of the appropriate authority that it is capable of providing the facilities for a successful surrogacy procedure, and shall be granted the certificate under Section 12 of the Act within 90 days from the date of application. The certificate shall be valid for 3 years, after which it can be renewed.

National and state surrogacy boards

The Act also aims to regulate surrogacy by establishing a National Assisted Reproductive Technology and Surrogacy Board (“NART Board”) and a State/Union Territory Assisted Reproductive Technology and Surrogacy Board in each state/union territory. The NART Board is responsible for advising the Central Government on policy matters relating to surrogacy, reviewing and monitoring the implementation of the Act and its rules, laying down the code of conduct for persons working at surrogacy clinics, and setting standards for clinic infrastructure and facilities, among other functions as given under Section 5 of the Assisted Reproductive Technology (Regulation) Act, 2021.

Penalties

Under Section 38 of the Act, offenders who undertake or advertise commercial surrogacy, indulge in sex selection of the child, abandon or disown a child born through surrogacy, and/or exploit the surrogate mother, shall be punishable with imprisonment for a term which may extend to 10 years and with fine which may extend to INR 10 Lakhs.

In case of any contravention of any other provisions of the Act, a general penalty of imprisonment up to 3 years along with a fine of up to INR 5 Lakhs shall also be levied.

Issues and Concerns

Beneficiaries under the Act

The Act does not allow unmarried women to give birth via surrogacy. Further, the right to become a  parent through surrogacy is only granted to heterosexual married couples and widowed or divorced women. Therefore, unmarried heterosexual couples as well as homosexual couples and non-binary couples cannot be intending couples and are not included within the scope of the Act.

Complete ban on commercial surrogacy

The Act completely bans commercial surrogacy and only allows for altruistic surrogacy where no monetary incentive, like fees or remuneration, except medical expenses, is given to the surrogate mother. This denies a surrogate mother from receiving a legitimate source of income after going through immense mental and physical pain. Further, a complete ban on commercial surrogacy can create an underground surrogacy industry, leading to the exploitation of poor and underprivileged surrogate mothers.

Instead, it is suggested that commercial surrogacy be regulated by setting up bodies at the district, state and national levels. These bodies should only allow clinics listed on their website and licensed by them to conduct commercial surrogacy. They should also set up online portals which provide essential details such as the basic average pay for commercial surrogacy, registration of surrogate women, list of clinics performing commercial surrogacy, educational videos for surrogate mothers to understand the process, as well as helpline numbers to receive and address complaints on exploitation of surrogate mothers and other illegal activities.

Exclusion of traditional surrogacy

Traditional surrogacy is where the surrogate mother is also the biological mother which is unlike gestational surrogacy which implants the embryo of the intending couple or intending woman in the womb of the surrogate mother. Initially, under the Rules, intending couples were allowed to use a donor egg and the husband’s sperm for the purpose of surrogacy. However, the Rules were recently amended on 14 March 2023 to mandate that both the egg and sperm must belong to the intending couple, and in case of an intending woman, the egg must belong to the woman which can be fertilised by a donated male sperm.

Since the Act and the Rules specifically restrict the use of donor eggs from the surrogate mother, the method of traditional surrogacy is missing from the purview of the Act which can be an option for single men, same-sex male couples, non-binary people, or intending women who do not have healthy eggs. Traditional surrogacy is also an affordable and faster process as the process of fertilisation for forming an embryo can be skipped.

Conclusion 

While the introduction of the Act to regulate the process of surrogacy is commendable, there needs to be a more progressive approach towards surrogacy by providing the right of parenthood to every section of society and regulating the Act in a manner that is in the best interest of all the parties. The omission of unmarried women, same-sex male couples, single men, and non-binary individuals from becoming beneficiaries under the Act is exclusionary, and the Act needs to be amended to include these parties under its ambit. Further, the complete ban on commercial surrogacy prevents women who are in dire financial situations from having a better living standard.

Although countries such as Australia and the United Kingdom only recognise altruistic surrogacy and prohibit commercial surrogacy, some states in the United States of America recognise and have a regulatory framework surrounding commercial surrogacy. Therefore, the Act should be amended to include provisions for commercial surrogacy, while highly regulating it to prevent exploitation of the surrogate mother.

Please reach out to Praveen Raju and Renuka Abraham for queries.