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In India being childless is seen as a curse, right from the taunts of the mother-in-law, to the social stigma, ignored by the neighbors during festivals where women partake to being harassed by relatives with bizarre suggestions on how to beget a child the couple face a lot of challenges, especially the women in the society we live in.
Couple who discovers that they are unable to conceive try various means to conceive, they relax, look at therapies, plan holidays, overdo sex and much more, to an extent they don’t leave any option unturned from visiting temples, performing rituals, go for a pilgrimage, visit astrologers and soothsayers and much more.
The couple would have tried the fertility treatments and would have not given the desired outcome. At times, the disappointment turns into arguments, blaming each other and escalating into quarrels, at times leads into divorce too.
While Adoption is a potential answer but the intense desire to have own blood line makes the couple not to often opt this, while countable few do. One such solution which is still not fully gained momentum is Surrogacy. Here in this blog post you may get some basic understanding on some Frequently asked questions around Surrogacy and a Legal Point of view as a practicing lawyer in Bangalore I am sharing for the benefit of the reader.
What is Surrogacy?
The term surrogacy is used for a procedure in which a woman called as the surrogate mother carries the child for the term of pregnancy right from the time of implantation of the embryo to give birth and ultimately hands over the child to the couples who intends to become parents through surrogacy and have medical condition which necessitates them to go for gestational surrogacy.
There are designated surrogacy clinics, laboratories or centers established based on the Clinical Establishments (Registration and Regulation) Act, 2010 which conducts the surrogacy procedure and various other services including reproductive technology services established under Assisted Reproductive Technology (Regulation) Act, 2021; In Vitro Fertilization services based on the general principles of law as there are no legislation in India governing such services, genetic counseling center bound by Pre Natal Diagnostic technique Act, 1994, genetic laboratories or any other clinical establishments also Assisted Reproductive Technology Banks which conduct surrogacy procedures.
How did Surrogacy Law Evolve in India?
The evolution dates back to less than a decade, The Assisted Reproductive Technology Bill, 2013, and then Surrogacy (Regulation) Bill, 2016 followed with the Bill reintroduced in 2019 and finally came the Surrogacy (Regulation) Act, 2021 further amended recently in June 2022. This is perhaps the newest regulation and still has a long way to mature. As of now we are governed by law under the Surrogacy Act 2022.
What are the regulations a surrogacy clinic supposed to follow?
A surrogacy clinic must be registered under the Surrogacy Regulation Act of 2021 at the registry to be known as the National Assisted Reproductive Technology and Surrogacy Registry by the act in order to be able to carry out any procedure relating to surrogacy and the registered practitioners or any other person working there must be qualified and carry out the procedure only at the registered clinic and must not indulge themselves or advertise about commercial surrogacy in any form or try to persuade or convince an woman to be a surrogate mother.
The termination of pregnancy must only be done with the prior written consent of the surrogate mother. The act also strictly prohibits storing of human gamete or embryo for the purpose of surrogacy. Conducting or even cause to conduct sex selection for the purpose of surrogacy is barred by the act.
What are the different kinds of Surrogacy?
The kinds of surrogacy can be broadly classified into two types:
Altruistic surrogacy – It is common in situations where the surrogates are identified as relatives or any other person who out of devotion and goodwill offers to be a surrogate mother for no additional charge and compensation other than the medical cost and other surrogacy related expenses including the medical expenses which is given to the surrogate mother, her representative or her dependents.
Altruistic surrogacy is pursued by either the gestational surrogacy process where the surrogate mother is not biologically or genetically related to the child or the traditional surrogacy process where the surrogate mother is the biological mother as well, it is her eggs which is fertilized through the donors sperms, in such cases the intending mother is deprived of being genetically connected to the child. The traditional Surrogacy Process is also termed as partial surrogacy, genetic surrogacy or straight surrogacy,
Commercial Surrogacy – It is referred to commercialization of the surrogacy procedure or services indulging in trade including selling or buying of embryos, gamete or a surrogate mother for monetary benefit or reward in the form of cash or kind is termed as commercial surrogacy which the act prohibits in any form including the advertisement of the commercial surrogacy, indulging in the process would result in the prescribed punishment, for the first offense, a period of up to five years’ imprisonment and a fine of up to five lakh rupees is possible; for any future offenses, a term of up to 10 years’ incarceration and a fine of up to ten lakh rupees is possible.
Who can be a surrogate mother?
According to the Act,
A woman who is married and has a child of her own,
Who is between the age of 25 to 35 years
She should also be relative to the impounding couple
She should be in a position to produce a fitness certificate.
A women can be a surrogate mother to impending couples through Altruistic Surrogacy. A woman must also be a surrogate only once in her lifetime.
What are the criteria to undertake surrogacy?
Only legally wedded, infertile couples where the husband must be between the age of 26 and 55 years and the wife between 23 to 55 years of age with no surviving biological, adopted or surrogate children are eligible to undergo surrogacy.
It is also open to partners in live-in relationships and foreigners. The married couple should have at least been married for 5 years and should have the certificate of essentiality and a certificate of eligibility issued by the competent authority as prescribed in the act.
The exception to the above rule is when the biological or the adopted children are physically or mentally challenged or are suffering from some life-threatening disorder or some mental illness.
A single woman is eligible for surrogacy provided she is a widow or a divorcee between the age of 35 and 45.
Medical conditions like a women having no uterus or is been removed due to any disease, Failed to conceive after multiple IVF treatments, multiple pregnancy losses / miscarriages or any unexplainable condition or illness that prevents the woman to conceive
What are the procedures permitted to be carried out at a registered surrogacy center?
A registered surrogate center can only indulge themselves in procedures including in vitro fertilization, gamete donation and intrauterine insemination. While the Act strictly prohibits “Commercialization of surrogacy services or procedures or its component services or component procedures” Also there is a strict ban on commercial surrogacy.
What is the procedure for surrogacy in India?
The first step is to register the surrogacy clinic at the government level. The national surrogacy board which is at the central level assists the government which checks on the registration of the surrogacy clinic, advises the central government and lays down the code of conduct for the clinic and to check the implementation of the act likewise there is state surrogacy board at the state level carrying out similar functions and ensure proper implementation of the act by the clinic.
What does the law say about a child born from surrogacy procedure?
As per the act a child born from a surrogacy must be handed over to the impending parents who do not have the option to abandon the child whether residing in India or outside the territory of India for any reason which may include any mental or physical disorder or any such condition unfavorable to the parents.
What are the duties of the doctor performing surrogacy towards the surrogate mother?
It is the responsibility of the doctor to keep the woman willing to become a surrogate mother to inform her of her rights and the known risks involved in becoming a surrogate mother and its after effect. The doctor must obtain a consent from the woman in writing in the language she understands. It is also the duty of the doctor to keep her informed that she has the option to withdraw her consent at any point before the implantation of the woman embryo in her womb.
What are the grounds for surrogacy in India?
For a couple to be able to go for the surrogacy procedure, either the husband or the wife or both of them should have any such condition that makes them incapable of conceiving leading them to have a gestational surrogacy as a necessity. The burden is on the couple to prove that they purely wish to go for altruistic and not commercial surrogacy also the couple will not be using the child born out of surrogacy for trafficking or prostitution.
Can a couple abandon or seek to abort the child born out of Surrogacy?
The anticipating couple or woman is not allowed to abandon the child, born out of a surrogacy procedure. A surrogate woman is allowed abortion during the process only if there is a medical condition. No dispute between the couple or with the surrogate mother or any other reason shall entertain abandoning the child or aborting the child.
Can a Gay Man or a Lesbian Woman or any person identifying as an LGBTQ+ opt for a child through Surrogacy?
Surrogacy Act 2022, is solely for heterosexual couples, it does not extend to Singles and LGBTQ+ community. The Act does not consider legitimacy of homosexual couples and denies them from commissioning a child through Surrogacy.
Can foreign couple surrogate in India?
Growing at 20% CAGR, the healthcare industry sees Surrogacy as $ 150 Million+ market. The Foreign couple in the recent years have tried to find a route to parenthood in India through commercial surrogacy. All unmarried or single persons and foreigners, except OCIs, have been declared ineligible for surrogacy. In short, the foreign couple are not eligible. In 2015, the Indian government banned foreigners from using Indian women as commercial surrogates.
Who is the Legal Mother of a Surrogate Baby?
A surrogate continues to be the biological mother, but she would have signed over her parental rights of the child’s to the proposed parents. If she has not entered a contract the surrogate mother would be the baby’s legal mother too and the proposed father who gave the sperm would be the legal father. Therefore, it is crucial for the legal contract to be well drafted and signed to ensure there is no conflict in the future.
What happens if the Surrogate mother keeps her baby?
Once she has signed the contract and a legal parenthood is established, the surrogate loses all her legal rights of being a mother of the child. Very recently there was a case where the Mumbai Court declared an Australia based couple as legal parents of Surrogate Child who faced similar challenge after the birth of the child.
Conclusion:
A woman is the creative force of the universe in almost all its expressions. Life begins in her womb (though a surrogate) and it is in her tender care that it finds expression. The physical and emotional changes of pregnancy and, then, the experience of labor, birth and post birth activities. There is a need for a concrete legal framework to monitor and regulate the existing surrogacy system to safeguard the interests of surrogate mother and the child.
The Centre and State governments are expected to constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively. This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications. As of today, while I am posting this blog post, the SSB for Karnataka is yet not formed and is in the process. Hopefully after March – 2023 this should be in place.
Sonia and Partners is a Boutique law firm led by Adv. Sonia Rajesh supported by a team of qualified and among the best lawyers in Bangalore practicing in the area of Family Law and Criminal defense serving Citizens of India, Overseas Indians, NRIs and Global International Clients.
Feel free to write to us at mail@lawyersonia.com or call at +91 9845944896 if you wish to consult or discuss your matter
