Commercial Surrogacy and the Surrogacy Regulation Bill 2021: A Comprehensive Overview

by | Oct 22, 2023

Regulating Surrogacy in India: A Journey Through Key Bills and Legal Implications

Parenthood is a cherished dream, but not all couples can naturally conceive. Surrogacy, an assisted reproductive method, has provided a means for many to realize their dream of parenthood. However, the lack of clear legislation in India led to unregulated surrogacy practices, often raising concerns. In response, a series of bills and guidelines have been introduced to bring structure and oversight to surrogacy practices. This article explores the history of surrogacy in India, the key aspects of these bills, their legal and constitutional implications, and the impact of the Baby Manji case.

A Historical Perspective

Surrogacy in India traces its roots back to 1978 with the birth of Kanupriya, the country’s first IVF child. Initially, no specific laws governed surrogacy, resulting in unregulated practices. This vacuum allowed for the rapid growth of surrogacy clinics, attracting both Indian and foreign couples.

The Assisted Reproductive Techniques (Regulation) Bill, 2014

In 2014, the Indian government introduced the Assisted Reproductive Techniques (Regulation) Bill, intended to regulate various assisted reproductive methods, including surrogacy. Key aspects of the bill included:

  • Establishment of National and State Boards for oversight and regulation.
  • Mandatory registration of clinics and professionals offering assisted reproductive services.
  • Age restrictions on intended parents, along with mandatory counselling.
  • Guidelines to ensure the welfare of children born through assisted reproductive methods.

However, the 2014 bill did not entirely address the complexities associated with surrogacy.

The Surrogacy Regulation Bill 2016

In response to surrogacy concerns, the Indian government introduced the Surrogacy (Regulation) Bill in 2016. This bill redefined surrogacy and introduced various regulations. Key aspects included:

  • Eligibility criteria based on proving “infertility,” defined as the inability to conceive naturally after five years of unprotected coitus or due to specific medical conditions.
  • Provision for altruistic surrogacy, where the surrogate mother does not receive financial compensation beyond medical expenses and insurance.
  • The bill allowed surrogacy only for married couples, excluding same-sex couples.

The Surrogacy Regulation Bill 2021

The Surrogacy (Regulation) Bill, 2019, introduced by Dr. Harsh Vardhan in the Lok Sabha, was passed in 2021. This bill redefined surrogacy and set out various regulations. Key aspects included:

  • Eligibility limited to “married couples,” excluding same-sex couples.
  • A restrictive definition of “infertility,” which did not encompass all scenarios.
  • The requirement that the surrogate mother be a “close relative” of the intending couple, without a clear definition.
  • The grant of full parental rights to intending parents, with conditions on abortion requiring the appropriate authority’s approval.
  • Lack of explicit provisions for the right to privacy and dignity for surrogate mothers and intending parents.
  • Absence of measures to address potential emotional conflicts between surrogate mothers and intending parents post-childbirth.
  • Characterizing surrogacy as a “Need” rather than a “Want,” potentially infringing on the right to make reproductive choices guaranteed by Article 21 of the Constitution.

Recent Guidelines for Surrogacy

In addition to these bills, guidelines were issued to further regulate surrogacy in India:

  • Prohibition of Embryo Imposition: Surrogacy clinics are prohibited from imposing human embryos for surrogacy services, ensuring that the decision to proceed with surrogacy is voluntary.
  • Visa Restrictions: Foreign nationals seeking surrogacy services are denied visas to visit India for commissioning surrogacy, allowing for better oversight of surrogacy practices.
  • OCI Cardholders: Overseas Citizen of India (OCI) cardholders are also barred from commissioning surrogacy in India, reinforcing surrogacy services for Indian citizens.
  • Exit Permission for Children: Exit permission for children born through surrogacy to foreign nationals, including OCI cardholders, is restricted, with exceptions for pre-guideline cases.
  • Visa Cancellations: Visas granted after the issuance of these guidelines may be canceled to reinforce restrictions on foreign nationals seeking surrogacy in India.
  • Process Completion for Pre-Guideline Cases: Clinics that initiated surrogacy processes before the guidelines came into effect may complete these processes, with decisions made by state Health Authorities on a case-by-case basis.

Impact of the landmark Baby Manji Case

The Baby Manji case was a watershed moment in India’s surrogacy landscape. It involved a Japanese couple, Ikufumi Yamada and his wife, who had a child through surrogacy. The couple divorced before the child’s birth, leaving the child in legal limbo as Indian law did not recognize them as the legal parents. This case underscored the need for clear legal frameworks in surrogacy and led to legislative changes.

Punishments Under the Bills

Both the Surrogacy (Regulation) Bill, 2016, and the Surrogacy Regulation Bill, 2021, include provisions for penalties in cases of non-compliance. These penalties may involve fines, imprisonment, or the revocation of licenses for clinics and medical professionals involved in unlawful surrogacy practices. The aim is to deter illegal and exploitative surrogacy arrangements and protect the rights of surrogate mothers and intending parents.

Legal and Constitutional Implications

The Surrogacy Regulation Bill, particularly the 2021 version, has faced criticisms and raised legal and constitutional concerns. These include potential violations of Article 14, which guarantees equality before the law, and infringements on the rights of LGBTQ individuals. The lack of clarity on the definition of “close relative” and the absence of explicit provisions for the right to privacy and dignity are also issues of concern. The bills must be refined and amended to create a comprehensive and equitable framework for surrogacy, respecting constitutional rights and diverse family structures.

Legislation / Guidelines
Year of Introduction
Salient Features
Significance
Pros
Cons
Passed
Current Status
ART (Regulation) Bill, 2014
2014 Regulation of assisted reproductive methods, including surrogacy. First attempt to regulate assisted reproductive techniques. Establishes oversight through National and State Boards, emphasizes child welfare. Lacks specific surrogacy focus. No Not passed.
Surrogacy Regulation Bill, 2016
2016 Redefined surrogacy, imposed regulations, limited eligibility. First specific legislation addressing surrogacy. Defines surrogacy, attempts to prevent exploitation. Restrictive eligibility criteria. No Not passed.
Surrogacy Regulation Bill, 2021
2019 Bans commercial surrogacy, limits eligibility to married couples. Addresses surrogacy issues and prohibits commercial surrogacy. Aims to protect surrogate mothers and children’s rights. Excludes same-sex couples, restricts definitions. Yes Passed and in effect.
Recent Surrogacy Guidelines
Ongoing Prohibits embryo imposition, visa restrictions, and exit permissions. Seeks to regulate aspects of surrogacy. Enhances control and oversight. May impact couples with ongoing processes. No In effect.
Baby Manji Case
2008 Legal case highlighting surrogacy complexities. Brought attention to the need for clear surrogacy laws. Increased awareness and prompted legislative changes. Legal complexities surrounding surrogate children. Not applicable Closed case, but continues to influence surrogacy legislation.

Conclusion

The regulation of surrogacy in India is an evolving process, marked by the introduction of various bills and guidelines to bring structure and oversight to surrogacy practices. While these developments represent significant steps toward responsible surrogacy practices in the country, there is still work to be done. Surrogacy should become an accessible and stigma-free option for all individuals who wish to pursue this path to parenthood.

The Assisted Reproductive Techniques (Regulation) Bill, 2014, played a foundational role in shaping the legal landscape of assisted reproduction in India, while the Baby Manji case served as a poignant reminder of the necessity for clear legal frameworks in the world of surrogacy.

Source: PRS, The Hindu Business Line

Written By Vishakha Khatri

My name is Vishakha Khatri. I am an engineering graduate and a civil service aspirant with a passion for spreading knowledge about Indian polity. I believe that understanding our political system is crucial for every citizen, and I am committed to making this information accessible to everyone in my own easy way. Through my experiences in civil service preparation and my unique perspective as an engineering graduate, I hope to inspire and educate others on the importance of Indian polity.

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