The position of Indian law on assisted reproductive technology (ART) and surrogacy has undergone a major shift over the last few years. We were once a country at the forefront of reproductive technology and the field of ART, including in-vitro fertilisation (IVF), gamete donation and surrogacy. However, the present regime under the Surrogacy (Regulation) Act, 2021 (SR Act) is regarded by many to be restrictive, arbitrary and exclusionary.
Over the years, particularly in the late 1990s and early 2000s, numerous unregulated ART/surrogacy clinics cropped up in the private sector, and rampant unethical practices were witnessed. These include baby trading, sex determination, unregistered clinics, widespread abandonment of children born out of surrogacy, procedures endangering the life of the surrogate, sale of wombs, exploitation by middlemen etc. At this point, the overwhelming need for proper regulation and oversight was felt more than ever to ensure the safety, ethics and rights of all the parties involved.
Considering the prominent and rampant misuse of surrogacy in India in a legislative and regulatory vacuum, from 2005 onwards, there were around ten draft Bills to regulate surrogacy in an ethical manner. Various models were explored in 2008, 2010, 2013, 2014, 2015, 2016, 2018, 2019 and 2020.
During this time, while the practice was largely regulated by a patchwork of informal/non-binding guidelines made by the Indian Council of Medical Research (ICMR) and the policies of individual fertility clinics, there were also three Parliamentary Committee Reports and a Law Commission Report that recognised the need for legislation to regulate ART clinics as well as the rights and obligations of parties to surrogacy.
By 2015/2016, the government had decided to impose a ban on commercial surrogacy to stop the misuse of ART procedures. To that end, it systematically excluded foreign couples from availing of ART services in India by restricting the criteria to only heterosexual married couples, banning the import of embryos, and finally refusing visas for surrogacy to all foreigners.
The efforts to regulate surrogacy and ART finally culminated in the enactment of the Surrogacy (Regulation) Act, 2021 (SR Act) and the Assisted Reproductive Technology (Regulation) Act, 2021 (ART Act).
Regulation of surrogacy
The Act completely prohibits commercial surrogacy [Sec. 2(1)(g)], where there is a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage. However, it allows altruistic surrogacy [Sec. 2(1)(b)], which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
Purposes for which surrogacy is permitted
Under the present regime, surrogacy is permitted only when it is for intending couples who suffer from proven infertility. Additionally, it must be altruistic, not for producing children for sale, prostitution or other forms of exploitation and for any condition or disease specified through regulations [Sec. 4(ii)].
“Couple” means the legally married Indian man and woman above the age of 21 years and 18 years respectively; [Sec. 2 (h)]
Eligibility criteria for intending couple
For an ‘intending couple’ to be eligible to undergo a surrogacy procedure under the present regime, they are required to have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions:
(i) The couple are Indian citizens [Sec. 4(ii)(a)] and;
(ii) Between 23 to 50 years old (wife) and 26 to 55 years old (husband) [Sec. 4(iii)(c)(I)];
(iii) They do not have any surviving child (biological, adopted or surrogate). This would not include a child who is mentally or physically challenged or suffers from life-threatening disorder or fatal illness; [Sec. 4(iii)(c)(II)]
Eligibility criteria for surrogate mother
To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to:
(i) Be a married woman having a child of her own between the ages of 25 and 35 years old; [Sec. 4(iii)(b)(I)]
(ii) Be a willing woman; [Sec. 4(iii)(b)(II)]
(iii) Not provide her own gamete; [Sec. 4(iii)(b)(III)]
(iv) Be a surrogate only once in her lifetime; [Sec. 4(iii)(b)(IV)] and
(v) Possess a certificate of medical and psychological fitness for surrogacy.
Ever since its introduction, the Surrogacy Regulation Act, 202 has been challenged by writ petitions before the Supreme Court and various High Courts. The vires of the Act have been assailed on multiple grounds - being unscientific, arbitrary, exclusionary, discriminatory, enabling unnecessary state interference in private life etc. Specifically, the following aspects of the Act have come under the scanner:
a. The arbitrary and discriminatory age limit prescribed for the intending couple and the surrogate.
b. The artificial distinction drawn between a single woman, to whom surrogacy is not available on the one hand, and a divorcee or widow, who is permitted to avail of surrogacy services on the other.
c. The complete ban on commercial surrogacy.
d. The baseless restriction on availing surrogacy based on the number of existing children.
e. The rights of individuals who had initiated surrogacy before the Act came into force.
Although the aforesaid issues are pending and still sub judice before the Supreme Court, at first blush, the Act appears to be discriminatory. It does not meet the touchstone of Article 14 of the Constitution of India as it does not consider India's new realities. The LGBTQ+ population, live-in-couples and single men and women have been indiscriminately excluded from the purview of the Act. Further, the Act suffers from the absence of any intelligible rationale while drawing artificial distinctions between various classes of persons. For instance, there is a complete lack of reasoning or rationale for prohibiting a single woman from availing of surrogacy, particularly where the same single woman is permitted to adopt a child. Furthermore, the Act completely overlooks the harsh realities of a complete prohibition, where surrogacy is increasingly being pushed into the unorganised sector. The Supreme Court has also recently indicated that a ban on commercial surrogacy may not be the answer and that there is a need for a regulation system so that no woman is exploited.
The Act also appears to be contrary to the Supreme Court judgment in Suchita Srivastava & Anr v. Chandigarh Administration, the nine-judge bench decision in Puttaswamy, which recognised the right to reproductive autonomy as a fundamental right, and Khushboo v. Kannniamal, wherein the Court accepted live-in relationships between consenting adults as not amounting to any statutory violation.
In Baby Manji Yamada v. Union of India, Supreme Court recognised that the intending parent may be a single man or a homosexual couple and the landmark case of Navtej Singh Johar declared Section 377 as unconstitutional.
However, during the Lok Sabha debates, this issue was dealt with in one paragraph, which reads that,
"Section 377 only withdraws the criminalisation of the same sex living together, but persons in a live-in relationship or single parent do not constitute a family."
The existing law leaves much to be desired and can still be said to be "developing". The need of the hour is to bring about a legal framework that regulates commercial surrogacy in India and reasonably protects the rights of all stakeholders involved in the process, it is likely that only after the present legal framework is examined and tested by the Supreme Court will there be clarity as to the availability of reproductive technology to all citizens.
Shivani Luthra Lohiya and Nitin Saluja are Partners and Nischal Tripathi is an Associate at S&LL Law Chamber.