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Insights EDITORIAL ANALYSIS : The debates around the Surrogacy Act

 

Source: The Hindu

  • Prelims: Provisions of Surrogacy Act,
  • Mains GS Paper II: Management of social sector related to Health, Surrogacy Act.

ARTICLE HIGHLIGHTS

  • Petitioners in the Delhi High Court questioned why marital status,age, or gender were the criteria for being allowed to commission or not commission surrogacy in India.
  • But under the provisions of the Surrogacy Act, she was denied a chance at commissioning surrogacy.
  • As per the Surrogacy Act, a married couple can opt for surrogacy only on medical grounds.

 

INSIGHTS ON THE ISSUE

Context

 

Surrogacy:

  • It is a practice where a woman undertakes to give birth to a child for another couple and agrees to hand over the child to them after birth.
  • A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries and gives birth to a child for another person or couple (intended parent/s).

Altruistic surrogacy:

wherein only the medical expenses and insurance coverage is provided by the couple to the surrogate mother during pregnancy. No other monetary consideration will be permitted.

Commercial surrogacy:
It includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

 

Surrogacy (Regulation) Act, 2021:

  • A woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.
  • It bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs.
  • The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child.

 

Who all are allowed to make use of the services of a surrogate mother?

  • Any couple that has ‘proven infertility’ are candidates. The ‘intending couple’ as the Act calls them, will be eligible if they have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
  • certificate of essentiality will be issued in three cases:
  1. certificate of infertility of one or both from a district medical board
  2. An order of parentage and custody of the surrogate child passed by a Magistrate’s court
  3. Insurance cover for the surrogate mother.
  • Eligibility certificate mandates:
  1. They Should be Indian citizens who have been married for at least five years
  2. The female must be between 23 to 50 years and the male, 26 to 55 years
  3. They cannot have any surviving children (biological, adopted or surrogate)

 

Need for a Surrogacy Act in India:

  • India has emerged as a hub for infertility treatment, attracting people from the world over with its state of the art technology and competitive prices to treat infertility.
  • Due to prevailing socio economic inequities, underprivileged women found an option to ‘rent their wombs’ and thereby make money to take care of their expenses.
  • Middle men inveigled themselves into the scene and exploited these women. Several instances began to emerge where women, in often desperate straits, started lodging police complaints after they did not receive the promised sum from the middle men.
  • In 2008 a Japanese couple began the process with a surrogate mother in Gujarat, but before the child was born they split with both of them refusing to take the child.

 

Controversies behind the Act:

  • It does not allow single women, or men, or gay couples to go in for surrogacy.
  • Brokers Continue to operate, though with less temerity and more covertly, sometimes with hospital authorities, to pull wool over the eyes of the appropriate authority and law enforcement officials.
  • Exploitation of the Surrogate and the Child:
    The state must stop the exploitation of poor women under surrogacy and protect the child’s right to be born. However, the current Act fails to balance these two interests.
  • Reinforces Patriarchal Norms:
    It reinforces traditional patriarchal norms of our society that attributes no economic value to women’s work and directly affects the fundamental rights of the women to reproduce under Article 21 of the constitution.
  • Denies Legitimate income to Surrogates:
    Banning commercial surrogacy also denies a legitimate source of income of the surrogates, further limiting the number of women willingly to surrogate.
  • Emotional Complications:
    In altruistic surrogacy, a friend or relative as a surrogate mother may lead to emotional complications not only for the intended parents but also for the surrogate child as there is great deal of risk to the relationship in the course of surrogacy period and post birth.
  • No Third-Party Involvement:
    In an altruistic surrogacy, there is no third-party involvement.
    A third-party involvement ensures that the intended couple will bear and support the medical and other miscellaneous expenses during the surrogacy process.
Assisted Reproductive Technology(ART):

●     ART is used to treat infertility.

●     It includes fertility treatments that handle both a woman’s egg and a man’s sperm.

●     It works by removing eggs from a woman’s body and mixing them with sperm to make embryos.

●     The embryos are then put back in the woman’s body.

●     In Vitro fertilization (IVF) is the most common and effective type of ART.

●     ART procedures sometimes use donor eggs, donor sperm, or previously frozen embryos.

●     It may also involve a surrogate carrier.

 

Way Forward

  • A Path of litigation is possibly the course ahead, and if a critical mass builds up,amendments might have to be resorted to inorder to resolve the grievances and ensure access for all categories of parents.
  • As India is one of the major hubs of these practices, the Act is certainly a step in the right direction. There, however, needs to be a dynamic oversight to ensure that the law keeps up with rapidly evolving technology, demands of morality and societal changes.

 

QUESTION FOR PRACTICE

India has emerged as a hub for infertility treatment, attracting people from the world. In the light of this statement critically analyze Surrogacy Act, 2021. (200 WORDS, 10 MARKS)