Legality of Surrogacy in India: Everything You Need to Know

16th June, 2023 - 7:49 am Categories: IVF technique Surrogacy in India 0 Comments

Introduction 

Surrogacy, in simpler terms, is a legal arrangement between parents intending to have a child and the surrogate mother. In India, surrogacy is an accepted practice in society and it also finds mention in mythological texts such as the Mahabharata.^[i] Medical reasons or medical threats to the body of the intended mother are the most common reasons for choosing surrogacy. For example, a woman who has had a hysterectomy (removal of the uterus) cannot carry a pregnancy herself, but she may still want to have a biological child. In such cases, a surrogate mother could carry a fertilized embryo created with the woman’s egg and her partner’s sperm.

Types of Surrogacies

There are two types of surrogacies: one is the traditional method and the other is the gestational method. In traditional surrogacy, the surrogate mother uses her egg, so there is no need for an egg from a different person. This makes the process simple and doesn’t require the surrogate mother to undergo many fertility treatments. The sperm is placed inside the surrogate mother’s uterus using a process called intrauterine insemination. The intended mother does not need to go through any procedures to get her eggs since they are not used here. However, in gestational surrogacy, the in vitro fertilization method is used, commonly known as the IVF technique. Only this method is legal in India. Gestational surrogacy is usually preferred by surrogates because they are not biologically related to the child. This means that they do not have a genetic connection to the baby and are less likely to develop an emotional attachment. Gestational surrogacy can be more costly than traditional surrogacy because both the intended mother and the surrogate need to undergo fertility treatments and egg retrieval procedures. The intended mother or a donor must provide the eggs, which requires hormone injections and careful monitoring. The surrogate must also undergo medical testing, hormone treatments, and the implantation procedure.

The Legality of Commercial Surrogacy in India

Surrogacy is helpful for people who can’t have a baby on their own, but it can also lead to problems. Commercial surrogacy, where people pay for someone to have their baby, is banned in India for a few reasons. The woman who carries the baby is often treated poorly and not paid fairly.[ii] This can cause problems for her physically, mentally, and financially. Child trafficking has also increased because of surrogacy.[iii] Surrogacy can also make babies seem like things that people can buy, which raises ethical questions. There are also psychological problems with surrogacy.[iv] These were the common reasons why the Government of India banned commercial surrogacy entirely and regulations to govern more than 3000 IVF clinics were passed.^[v]

Legal Provisions in India

• The Surrogacy Regulation Act, 2022
• The Surrogacy Regulation Rules, 2022
• Recent Amendments

The Surrogacy Regulation Act, 2021

The Act allows only altruistic surrogacy, which means that the surrogate mother cannot receive any compensation apart from the medical expenses incurred during pregnancy including insurance coverage. Commercial surrogacy, where the surrogate is paid in cash or kind, is banned. Before the intended couple can proceed with the surrogacy, they need to obtain two certificates – a certificate of essentiality and a certificate of eligibility – from a competent authority. To obtain a certificate of essentiality, certain conditions must be met. The couple must provide a certificate of infertility from a District Medical Board confirming that they are unable to conceive. The Magistrate Court must also pass an order regarding custody of the child. Additionally, insurance for the surrogate mother must be provided to cover postpartum complications for 16 months after delivery.

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Further, the Act prohibits any kind of advertisement for commercial surrogacy. The penalty for these offenses can be up to ten years of imprisonment and a fine of up to ten lakh rupees. It requires all clinics providing surrogacy treatment to be registered and for practitioners to meet certain criteria. The intending couple must be legally married, meet age requirements, and have no other children through surrogacy or adoption.

The Surrogacy Regulation Rules, 2022

The Surrogacy Regulation Rules, 2022 were notified by the central government to set forth the necessary criteria and regulations applicable to registered surrogacy clinics. These clinics are required to have a minimum staff composition consisting of at least one gynecologist, anesthetist, embryologist and counselor. Additional personnel may be employed from ART Level 2 clinics. The gynecologist must hold a post-graduate degree in gynecology and obstetrics, and possess experience in performing ART procedures. Surrogacy clinics must undergo registration with the appropriate authority and pay the prescribed fees. Upon approval, a certificate of registration is granted, which must be prominently displayed within the clinic premises. In the event of application rejection, cancellation or suspension, the applicant has the right to appeal within a 30-day timeframe using the designated appeal form. Authorized entities are empowered to conduct unannounced inspections of surrogacy clinics, including their facilities, equipment, and records, with the caveat that such inspections do not endanger stored gametes or embryos. The surrogate mother’s voluntary consent, as specified in the guidelines, is mandatory for the surrogacy procedure. The number of attempts for surrogacy is capped at a maximum of three. Normally, the gynecologist is expected to implant only one embryo, but in exceptional cases, up to three embryos may be allowed. If the surrogate mother wishes to terminate the pregnancy, the process must adhere to the guidelines outlined in the Medical Termination of Pregnancy Act, 1971. Additionally, it is mandatory for the intending couple or woman to procure health insurance covering a duration of 36 months for the surrogate mother’s protection.

Recent Amendments and Development

The first amendment to the Rules, which was notified on 10 October 2022, modified Rule 5(2) regarding insurance coverage for surrogacy. According to the revised rule, the intending couple must purchase insurance coverage for 36 months and guarantee it by signing an affidavit. Previously, the affidavit had to be sworn before the Metropolitan or the Judicial Magistrate of the First Class. The 2022 Amendment introduced flexibility in this process by allowing the affidavit to be sworn before either of two additional classes of authorities, namely an Executive Magistrate or a Notary Public. This change is expected to streamline the process and make it easier for intending couples to apply for surrogacy. By expanding the list of authorized authorities who can swear the affidavit, the amendment provides more options for the intending couple to comply with the insurance coverage requirement. This is likely to result in a quicker and smoother surrogacy application process.

The second amendment to the Rules, which was announced in March 2023, disallows intending couples from using donor gametes for surrogacy. Earlier, the rule stated that surrogacy treatment could include fertilization of donor oocyte by the husband’s sperm, which was interpreted by some to mean that using donor gametes was allowed. However, the 2023 Amendment replaces this provision with a new one that explicitly prohibits the use of donor gametes, whether for couples or single women (widows or divorcees). The amendment also clarifies that surrogate mothers cannot provide their gametes. Thus, intending parents who have medical issues with their gametes and need donor gametes to conceive a child may face difficulties in opting for surrogacy in India. The amendment restricts the pool of eligible persons who can commission surrogacy, along with other restrictions based on age, marital status, and medical requirements.^[vi]

Landmark Judgements 

1. Jan Balaz v. Anand Municipality [2009 SCC OnLine Guj 10446]: This is a landmark case in Indian surrogacy law. In 2008, the Petitioner, a German national, entered into a surrogacy agreement with an Indian woman to have a child. The child was born in Gujarat, India, and the Petitioner obtained a birth certificate for the child. However, when the Petitioner tried to leave India with the child, he was prevented from doing so by the authorities. The Petitioner filed a petition in the Gujarat High Court seeking permission to leave India with the child. The Court initially denied the petition, citing concerns about the child’s welfare and the legality of commercial surrogacy in India. However, the court ultimately granted permission to the Petitioner to leave with the child, subject to certain conditions. The case brought attention to the issue of commercial surrogacy in India and the need for clearer laws and regulations around surrogacy agreements. It also highlighted the need to ensure the protection and welfare of children born through surrogacy arrangements.
2. Baby Manji Yamada v. Union of India [(2008) 13 SCC 518]: This case involved a surrogate baby born to a Japanese couple through a surrogate mother in India. The couple later divorced, and the mother refused to take custody of the child, while the father was unable to obtain a visa to enter India to collect the child. The case raised questions about the legal status and rights of surrogate children and the responsibilities of surrogacy clinics and intended parents. Ultimately, the Supreme Court directed the Japanese consulate in India to issue travel documents for the child so that she could be taken to Japan and recommended that the Indian government create regulations to govern surrogacy in India.

Conclusion

In conclusion, surrogacy laws vary across different countries and regions and are constantly evolving. India has a comprehensive legal framework for surrogacy with the Surrogacy Regulation Act, 2021, and its associated Rules regulating all aspects of surrogacy. However, recent amendments to the Rules have brought new restrictions and may pose challenges to those who require donor gametes to conceive a child. The laws of surrogacy aim to balance the rights and interests of all parties involved, and individuals considering surrogacy should seek legal advice to ensure compliance with relevant laws and regulations.

Author: Suryansh is a law student at Hidayatullah National Law University, Raipur, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[i] Kalra, B., Baruah, M.P. and Kalra, S. (2016) The Mahabharata and Reproductive Endocrinology, Indian journal of Endocrinology and metabolism. Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4855973/#:~:text=%E2%80%9CSurrogate%20fatherhood%E2%80%9D%20a%20socially%20accepted,and%20Ambalika%2C%20to%20sire%20progeny. (Accessed: 11 May 2023).

[ii] Fenton-Glynn, C. (2019) Surrogacy: Why the world needs rules for ‘selling’ babies, BBC News. Available at: https://www.bbc.com/news/health-47826356 (Accessed: 30 May 2023).

[iii] Das, M. (2022) ‘Bhade Ki Kokh’ – how traffickers from North Bengal earn lakhs from illegal surrogacy, ThePrint. Available at: https://theprint.in/india/bhade-ki-kokh-how-traffickers-from-north-bengal-earn-lakhs-from-illegal-surrogacy/830328/ (Accessed: 30 May 2023).

[iv] Ahmari Tehran H;Tashi S;Mehran N;Eskandari N;Dadkhah Tehrani T; (no date) Emotional experiences in surrogate mothers: A qualitative study, Iranian journal of reproductive medicine. Available at: https://pubmed.ncbi.nlm.nih.gov/25114669/ (Accessed: 30 May 2023).

[v] Commercialization of surrogacy in India: The Effects of Globalisation (2023) Times of India Blog. Available at: https://timesofindia.indiatimes.com/blogs/voices/commercialization-of-surrogacy-in-india-the-effects-of-globalisation/ (Accessed: 11 May 2023).

[vi] Kriti et al. (2023) Methods of treatment revised vide surrogacy (regulation) amendment rules, 2023, SCC Blog. Available at: https://www.scconline.com/blog/post/2023/03/15/ministry-of-health-and-family-welfare-notified-surrogacy-regulation-amendment-rules-legal-research-legal-update-legal-news/ (Accessed: 11 May 2023).