Surrogacy Law in India: Acts, Eligibility, Loopholes & Controversies

Why in News?

Recently, Parliament passed two major Acts to regulate reproductive law and surrogacy in India. These Acts exclude live-in couples, single men, and the LGBTQ+ (Lesbian, Gay, Bisexual, Transgender, Intersex, and Queer) community from accessing surrogacy. Several other landmark changes introduced through these laws have triggered significant controversy regarding Indian surrogacy regulations.

The Law Governing Surrogacy in India

In December 2021, Parliament passed two key legislations replacing older guidelines:

• The Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act)
• The Surrogacy (Regulation) Act, 2021

What is Surrogacy?

Surrogacy is one of several Assisted Reproductive Technologies (ART). It denotes a process whereby a woman acts as a gestational carrier and bears a child for another person or persons, who become the child’s legal parents after birth.

What is Commercial Surrogacy?

Commercial surrogacy involves the gestational carrier mother receiving monetary compensation beyond medical expenses and insurance from the biological/commissioning parents. Due to affordable infertility clinics and the vulnerability of economically disadvantaged women willing to bear a child for money, India had previously become a prominent destination for commercial surrogacy.

What is Assisted Reproductive Technology (ART)?

ART is a collective term for medical procedures used to treat infertility. It refers to techniques involving the handling of gametes (sperms or eggs) outside the human body and transferring them or fertilized embryos into a woman’s uterus. These arrangements include In-Vitro Fertilization (IVF), gamete donation, and surrogacy. IVF is the most common and effective type of ART.

The Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act)

Time Frame:

• Introduced in Lok Sabha: September 14, 2020
• Standing Committee Report: March 19, 2021
• Passed by Lok Sabha: December 1, 2021
• Passed by Rajya Sabha: December 8, 2021
• Gazette Notification: December 20, 2021

Background of the Act

• 2002: The Indian Council of Medical Research (ICMR) issued initial guidelines to regulate ARTs.
• 2005: The government approved the draft national guidelines for the accreditation, supervision, and regulation of ART clinics in India.
• 2008: ICMR drafted the first Bill to regulate the ART industry.
• 2009: The Law Commission of India submitted its 228th report on ART procedures, discussing the need to control surrogacy arrangements.
• 2013: Surrogacy by foreign homosexual couples and single parents was banned, excluding several categories (such as foreigners, OCIs, live-in partners, and single persons).
• 2015: Commercial surrogacy was officially banned in India, permitting embryo import strictly for research. However, domestic and unvetted networks continued to operate through private clinics.
• 2016–2020: Successive bills were introduced, modified, and referred to standing committees, culminating in the 2021 Acts.

Need for the Act

• Standardizing Protocols: Countless ART clinics were operating without regulation. Oversight was necessary in the interest of public health, morality, and public order.
• Protection of Women and Children: Oocyte donors, surrogate mothers, and children born through ART require proper medical, legal, and financial protection.

Main Objectives

To regulate and supervise ART clinics and surrogacy, curb unethical practices like sex selection, and prevent the exploitation of surrogate mothers through stringent monetary penalties and imprisonment.

Main Provisions of the Act

1. Access to Surrogacy: The law permits married heterosexual couples and eligible women to use ARTs while excluding single men, cohabiting heterosexual couples, and LGBTQ+ individuals/couples.
2. Eligibility for Commissioning Parties:
   • The woman must be between the legal age of marriage and 50 years; the man must be between the legal age of marriage and 55 years.
   • Couples must prove medical infertility (unable to conceive after one year of unprotected coitus).
   • Intended parents must not have any surviving biological, adopted, or surrogate children (except if challenged with a life-threatening disorder).
   • A “certificate of essentiality” and 16-month insurance coverage for the surrogate mother are mandatory.
3. Eligibility for Surrogate Mother:
   • Must be married at least once and have a child of her own.
   • Must be between 25 to 35 years of age and a close relative of the couple.
   • Can act as a surrogate only once in her lifetime, with a maximum limit of seven egg retrievals.
   • Must be certified for medical and psychological fitness.
4. Eligibility for Donors:
   • Egg donors must be married with a child aged at least three years.
   • Commissioning parties must provide risk insurance for egg donors.
   • Age brackets: 21–55 years for male semen donors; 23–35 years for female egg donors.
5. Rights of the Child: Children born via ART are deemed the biological children of the commissioning couple with identical rights, while donors retain zero parental rights.
6. Clinic Registration and Duties: Clinics must maintain records for at least 10 years, register under the National Registry, secure written consent, and strictly avoid sex-selective procedures.
7. Offences and Penalties:
   • First-time offenders: Fines ranging from ₹5 lakhs to ₹10 lakhs.
   • Subsequent violations: Imprisonment from 8 to 12 years and fines between ₹10 lakhs and ₹20 lakhs.
   • Sex-selection advertising/practices: Imprisonment from 5 to 10 years and/or fines up to ₹25 lakhs.

Criticism and Loopholes

1. Accessibility Discrimination: Exclusion of single individuals and the LGBTQ+ community violates the right to equality under Article 14 of the Constitution.
2. Duplicity and Administrative Overlap: Multiple bodies for registration across the ART and Surrogacy Acts create bureaucratic friction and mismatched validity timelines.
3. Vague Definitions: Discrepancies in terms like “couple,” “infertility,” and “ART clinics” between related bills.
4. Privacy and Rights Concerns: Data-sharing mandates risk infringing upon personal privacy.
5. Donor Rights: Lack of structured counseling and formal consent-withdrawal provisions for donors.

Leading Judgments on Surrogacy

• Baby Manji Yamada v. Union of India (2008): Highlighted citizenship and nationality complexities regarding babies born to foreign nationals via Indian surrogate mothers.
• Jan Balaz v. Anand Municipality (2009): Addressed the citizenship status of twins born via compensated surrogacy to a foreign national father, prompting clearer guidelines on child welfare and international transit.

International Comparison of ART Laws

Countries like the United Kingdom (Human Fertilisation and Embryology Act, 2008), South Africa (National Health Act, 2003), Canada (Assisted Human Reproduction Act, 2004), and Australia maintain distinct transnational frameworks governing family planning and reproductive technologies.

(Source: https://prsindia.org/)