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By Shambhavi Sinha
It is important to take a critical look at the new surrogacy laws in India. In India as per the Indian Society of Assisted Reproduction as many as 27.5 million people are infertile including both men and women and around 40 to 50 per cent of infertile couples are due to abnormalities in the female reproductive system. Couples opt for surrogacy for diverse reasons. These may include scenarios where one partner is fertile and can contribute either sperm or ovum, situations where the couple is fertile, but the woman faces challenges with her uterus, or the desire to have a genetic child. Additionally, some couples may find adoption to be a complex process fraught with societal stigma, further motivating their choice towards surrogacy.
Surrogacy involves an arrangement where an individual carries and gives birth to a baby for another person. The traditional surrogate is a woman who gets inseminated with the father or a donor’s sperm artificially, and then they carry the baby for the couple and deliver for the couple, in this case the surrogate is biologically related to the baby. The other type of surrogacy is gestational surrogacy, in this form of surrogacy an embryo is transferred into the surrogate’s uterus, the embryo is formed by the ovum and sperm of the intended parents or donors. The current laws restrict all forms of commercial surrogacy and allow only for altruistic forms of surrogacy. The laws are so restrictive in nature regarding altruistic surrogacy that unregulated surrogacy continues to exist defeating the purpose behind introducing Surrogacy Act, 2021 (‘the Act’).
Surrogacy is not a new idea in India and has been in practice since 1978, with the delivery of the surrogate IVF child in India. While commercial surrogacy was legal in India it had no supervising legislation on it leading to women belonging to suppressed backgrounds such as Dalits and tribal being exploited and forced to do it. Women were being scouted by surrogacy agents for foreign couples and were made to be surrogates for these couples without being informed of the health risks that it could come with and may even suffer through these practices as neither the couple nor the agent were concerned with the health of the surrogate. Women were made to be surrogates multiple times, bringing irreversible harm to their bodies. However, it also cannot be denied that Surrogacy Act, 2021 was also not the answer. Section 4 (iii) of the Act makes it a mandate that only a relative that already has a child can be a surrogate for a couple that has been certified to be married for five years and have a medical certificate to prove their infertility as per Section 4(ii)(a) of the Act. This, however, denies many women the chance to seek surrogacy as asking a relative could be a taboo practice and leads couples to make drastic choices such as going to the black market for surrogates putting the lives of many women again in danger and unprotected by law. The new law also makes it impossible for queer couples to seek surrogacy as Section 4 sets the eligibility criteria for intending parents to be a married heterosexual couple. The Act faced contention due to its requirement for single women undergoing surrogacy to use their own eggs. In response, the Supreme Court remarked, “you can’t have everything in life.” The judgement further added that only widows and divorcees between the age of 35 to 45 can avail surrogacy. Which puts a restriction on younger widows and divorcees who want to avail surrogacy.
It is advisable to reconsider the requirement in the Act that couples must be married for five years before seeking surrogacy. This stipulation poses challenges for couples who marry later in life and wish to explore surrogacy as an option. Additionally, Section 4, which mandates that surrogates must have previously given birth, should be revisited. Moreover, restrictions based on age for widows and divorcees ought to be eliminated.
While it can be understood as to why these laws were enacted or amended it cannot be denied that certain changes still need to be made for it not to be a step back but rather a needed and progressive change and acceptance of all communities. The current laws draw away hope from a lot of couple who want a child through surrogacy and takes away their chance to have a kid. And there many who do not want to marry but wish for child, their opportunity to be a parent should not be taken from them just for the reason of not wanting to marry. And a couple’s sexual orientation should also not be a reason. Hence, if technology is available to make this hope a reality, it should be easily accessible to all.
Shambhavi Sinha is a third-year law student at Jindal Global Law School. Her areas of interest are reproductive rights, medical laws, criminal justice, child rights, and intersection of law and politics.
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