The Surrogacy (Regulation) Act, 2021
The Surrogacy (Regulation) Act, 2021
🔹 Background
Surrogacy refers to an arrangement where a woman (the surrogate mother) agrees to carry and give birth to a child for another person or couple (intended parents).
India had been a major destination for commercial surrogacy, leading to ethical, legal, and exploitation concerns.
Prior to this Act, surrogacy was largely unregulated, resulting in abuses such as exploitation of poor women and trafficking.
The Surrogacy (Regulation) Bill was introduced multiple times and finally enacted as the Surrogacy (Regulation) Act, 2021, to regulate surrogacy practices in India.
🔹 Objectives of the Act
To prohibit commercial surrogacy in India.
To regulate ethical surrogacy practices and protect the rights of surrogate mothers and intended parents.
To ensure surrogacy is altruistic, ethical, and transparent.
To prevent exploitation of surrogate mothers and protect the welfare of the child born through surrogacy.
🔹 Key Definitions (Section 2)
Surrogacy: A practice where a woman carries a pregnancy for intending couple/individual and hands over the child to them after birth.
Altruistic Surrogacy: Surrogacy where no monetary compensation, other than medical expenses and insurance, is given to the surrogate mother.
Commercial Surrogacy: Surrogacy made for monetary gain or reward, which is prohibited.
Intending Couple: A legally married couple (married for at least five years) seeking surrogacy.
Surrogate Mother: A woman who carries the pregnancy as per a medical procedure.
🔹 Important Provisions
1. Eligibility for Surrogacy (Sections 3-5)
Only Indian married couples legally married for at least five years can avail surrogacy services.
The couple must be infertile and aged between 23 and 50 years (female) and 26 and 55 years (male).
Surrogacy is allowed only for medical reasons.
Single individuals, live-in relationships, homosexual couples, foreigners, and commercial entities are not eligible.
The surrogate mother must be a close relative of the intending couple, aged 25 to 35 years, and have given birth to a child of her own.
2. Prohibition of Commercial Surrogacy (Section 4)
Commercial surrogacy is strictly prohibited.
Only altruistic surrogacy is permitted, with compensation limited to medical expenses, insurance, and incidental expenses.
3. Establishment of Regulatory Authorities (Sections 6-15)
The Act mandates the formation of:
National Surrogacy Board at the central level.
State Surrogacy Boards and Appropriate Authorities at the state level.
These authorities regulate, supervise, and grant licenses for surrogacy clinics.
They ensure compliance with ethical standards and maintain a surrogacy registry.
4. Rights of Surrogate Mother (Section 9)
The surrogate mother has the right to medical care, insurance, and psychological counseling during and after pregnancy.
She has the right to withdraw from surrogacy before embryo implantation.
After delivery, the child belongs to the intending couple, and the surrogate relinquishes all parental rights.
5. Parentage and Birth Certificate (Section 10)
The intending couple are considered the legal parents of the child.
The appropriate authorities will issue a birth certificate with the names of the intending parents.
The child has all rights of a biological child, including inheritance.
6. Offences and Penalties (Sections 18-25)
Penalties for:
Commercial surrogacy: imprisonment up to 10 years and fine up to ₹10 lakh.
Selling or purchasing human embryos or gametes.
Running unlicensed surrogacy clinics.
Surrogate mothers cannot be exploited or induced.
🔹 Significance of the Act
Puts an end to the exploitation of poor women as commercial surrogates.
Ensures surrogacy is an ethical, altruistic practice within a regulated framework.
Protects the rights and welfare of the surrogate mother, intending parents, and the child.
Supports the health, safety, and dignity of surrogate mothers through regulated medical care and insurance.
🔹 Relevant Case Law
Although the Act is new, some landmark cases paved the way for its enactment:
1. Baby Manji Yamada v. Union of India (2008) 13 SCC 518
Facts: Concerned nationality and custody of a child born through surrogacy in India to a Japanese couple.
Significance: Highlighted the legal vacuum regarding surrogacy in India.
Emphasized the need for clear laws on parentage and surrogacy.
2. Indian Council for Enviro-Legal Action v. Union of India (1996) 3 SCC 212
Not surrogacy-specific but important for environmental and ethical regulation principles applied in medical practices.
Shows the judiciary’s role in enforcing regulation for public welfare.
3. Baby M Case (United States, 1988)
While not Indian, this case is often cited in discussions on surrogacy rights, especially relating to the surrogate mother's rights vs. intended parents.
Influenced international legal perspectives, contributing indirectly to India's legislative approach.
🔹 Critical Observations
The Act excludes single parents, LGBTQ+ couples, and foreign nationals, which has drawn criticism for limiting reproductive rights.
The definition of "close relative" for surrogate mothers restricts accessibility.
Focuses heavily on altruistic surrogacy to prevent commercialization but some argue this may drive surrogacy underground.
Regulatory bodies will have a crucial role in effective implementation.
🔹 Summary Table
| Feature | Details |
|---|---|
| Year Enacted | 2021 |
| Type of Surrogacy Allowed | Altruistic only; commercial surrogacy banned |
| Eligible Intended Parents | Married Indian couples (married ≥5 years), infertile |
| Surrogate Mother Criteria | Close relative, age 25-35, must have had one child |
| Key Regulatory Bodies | National Surrogacy Board, State Boards, Appropriate Authorities |
| Penalties for Violation | Up to 10 years imprisonment and ₹10 lakh fine |
| Rights of Child | Full legal rights as child of intending parents |
🔹 Conclusion
The Surrogacy (Regulation) Act, 2021 represents India’s attempt to regulate surrogacy ethically by banning commercial surrogacy and limiting it to altruistic arrangements within tightly controlled frameworks. While it aims to protect surrogate mothers and intended parents, some restrictive provisions remain contentious and may be subject to future reforms or judicial scrutiny.
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