SURROGACY (REGULATION) ACT: KEY PROVISIONS AND CHALLENGES
- ByAdmin --
- 29 Apr 2025 --
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The Surrogacy (Regulation) Act, 2021 marks a significant step in the regulation of surrogacy in India, aiming to protect the rights of surrogate mothers and children born through surrogacy arrangements. The law also seeks to address concerns about the commercialization of surrogacy, ensuring that the practice is ethical, transparent, and free from exploitation. However, while the Act introduces essential regulations, it also raises several challenges, both in its implementation and its potential impact on the stakeholders involved.
Key Provisions of the Surrogacy (Regulation) Act, 2021
1. Eligibility for Intended Parents
- The law defines intended parents as Indian citizens who have been married for at least 5 years and are aged between 23 to 50 years for women and 26 to 55 years for men.
- Surrogacy is only allowed for heterosexual married couples who are unable to conceive naturally, and they must produce a medical certificate of infertility.
2. Ban on Commercial Surrogacy
- The Act prohibits commercial surrogacy, which was previously rampant in India. This means that surrogate mothers cannot receive financial compensation beyond medical expenses and insurance coverage. This provision aims to reduce the exploitation of women and prevent surrogacy from being treated as a business.
3. Altruistic Surrogacy
- The Act legalizes altruistic surrogacy, where a woman acts as a surrogate without any financial compensation beyond medical expenses. However, altruistic surrogacy is only allowed for close relatives of the intended parents, such as sisters, cousins, or nieces, and the surrogate must meet specific health and age criteria.
4. Regulation of Surrogacy Clinics
- The Act mandates the registration of surrogacy clinics with the National Surrogacy Board, which is tasked with overseeing the practice. Clinics must meet certain standards, and their activities are subject to regular audits to prevent exploitation and unethical practices.
5. Surrogate Mother Rights
- The Act provides comprehensive protection for surrogate mothers, ensuring that they are not exploited and are provided with medical insurance during the pregnancy. It also stipulates that surrogates must undergo medical, psychological, and legal counseling before entering a surrogacy agreement.
- The surrogate must not have been a surrogate more than once, and the maximum age for surrogates is 45 years.
6. Parentage and Citizenship
- The Act provides for the parentage of the child born through surrogacy to be assigned to the intended parents. It ensures that the child’s birth certificate reflects the intended parents, not the surrogate mother.
- The child born through surrogacy is entitled to Indian citizenship if the intended parents are Indian citizens.
Challenges in the Surrogacy (Regulation) Act
1. Exclusion of Single Parents and LGBTQ+ Couples
- One of the most significant criticisms of the Act is its exclusion of single individuals and LGBTQ+ couples from accessing surrogacy. The law restricts surrogacy to married heterosexual couples, which limits the rights of individuals or same-sex couples who wish to have children through surrogacy.
- This has raised concerns about discrimination and a lack of inclusivity, as the law fails to recognize evolving family structures in modern society.
2. Complicated Procedures and Bureaucratic Challenges
- The registration and approval process for surrogacy arrangements under the Act is complex and requires multiple steps, including medical, psychological, and legal evaluations. This can lead to delays and increased costs, making surrogacy less accessible for many intended parents.
- The involvement of multiple government bodies and agencies in regulating surrogacy practices can also result in bureaucratic hurdles, which may hinder the efficient implementation of the law.
3. Psychological and Legal Counseling
- Although counseling is mandatory for both the surrogate mother and intended parents, the effectiveness of such measures is uncertain. There are concerns that counseling services may be inadequate in some parts of the country, particularly in rural or underserved areas, where access to quality healthcare and legal services is limited.
4. Impact on the Surrogate Mothers
- While the Act provides protections for surrogate mothers, including the prohibition of commercial payments, many argue that the lack of financial compensation might lead to situations where women are coerced into becoming surrogates due to financial pressures, especially in impoverished communities.
- The restriction that a woman can only be a surrogate once limits her ability to earn from surrogacy, potentially causing financial distress for women who see surrogacy as a source of income.
5. Enforcement of Provisions
- Although the law outlines clear guidelines, the enforcement of these provisions remains a challenge. The lack of stringent monitoring mechanisms and oversight may lead to the circumvention of the law, especially in cases where surrogacy arrangements are conducted under the radar or in rural areas where legal awareness is low.
Conclusion
The Surrogacy (Regulation) Act, 2021 is a step forward in regulating surrogacy practices in India. By emphasizing the protection of surrogate mothers and the child’s welfare, the Act aims to bring much-needed reform to a sector previously marred by exploitation. However, the law’s restrictions on who can access surrogacy and its bureaucratic complexities present significant challenges.
As India continues to evolve in terms of family structures and reproductive rights, there is a need for further reforms to address the gaps in the law. These reforms should focus on inclusivity, ease of access, and adequate protection for all parties involved in surrogacy, ensuring that the practice remains ethical and just in its implementation.
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