Analysis of Surrogacy Regulations in India: Rules, Challenges and Future Changes

Abstract

The term surrogacy implies a condition wherein, a woman called a surrogate gives birth to a child for another couple or intended parents. The use of surrogacy to avail a child has become popular in today\'s time, with increase in infertility rates among couples around the world, the wish to have a child at an older age and also homsexual couples need to opt for a child. With this increasing demand for surrogacy, several nations have laws that regulate surrogacy, according to the social norms that prevail in those countries and to avoid exploitation of surrogates. The paper below analyses the surrogacy regulations in India, the changes required and the future challenges.

Introduction

I. INTRODUCTION

The term surrogacy originates from the Latin word ‘Surrogatus’, which means a woman acting as a substitute for another woman. The surrogate is usually impregnated through In Vitro Fertilisation (IVF), using the eggs from surrogate or egg donor and sperm from a sperm donor, to create embryo. The embryo is implanted in the surrogate who carries it for 9 months and once the baby is born, it is handed over to the intended parents. The child is biologically considered to belong to the intended couple. Surrogacy is an option for women who cannot carry a child, for couples with medical conditions, for single women who wish to have a child and also for same sex couples. It's not easy to avail surrogacy as it is bound by various government restrictions across the globe. Some countries allow commercial and altruistic surrogacies, the practice of commercial surrogacy is banned in many countries, especially the developed ones.

Kanupriya alias Durga was born in 1978, through the process of IVF. This gave hope to use surrogacy as an Alternative Reproductive Technique (ART).  This was the beginning of ‘reproductive tourism’ in India. In 2002, commercial surrogacy was legalised, this is said to have made India, a supermarket for surrogacy, which attracted a large number of foreign clients due to the cheaper cost of surrogacy compared to foreign countries. There was no bill, law or legislation framed in this context to guide surrogacy.  This resulted in the rise of uncontrolled surrogacy in India. Cities like Anand in Gujarat became the cradle of surrogacy, with large surrogacy clinics set up across India. Certain guidelines issued by Indian Council for Medical Research (ICMR) but were not accurately codified. There was no clear mention of who can avail surrogacy, what are the conditions that define infertility, how many embryos can be inserted at one point or the maximum or minimum payments given to the surrogate. This led to a sharp rise in surrogacy in India. According to a Hindustan Times article titled ‘MOMS MARKET’ in 2012, the cost of surrogacy in the US was 65 lakhs while in India it cost 4 lakhs[1].  Packages were offered based on the number of embryo transfers, surrogates background and legal work. The CII ( Confederation of Indian Industry) Report of 2012 states that the surrogacy industry in India was worth 2 billion dollars. As India was established as a centre of surrogacy, due to lack of unframed laws, there was a rise in exploitation cases of surrogate mothers in the context of commercial surrogacy. The ART bill 2013 banned homosexual couples, live-in couples and foreign single individuals from availing surrogacy in India.

In 2015 after careful consideration the government decided to ban commercial surrogacy and the The Surrogacy (Regulation) Bill, 2016 was drafted which allowed only altruistic surrogacy and gave a new definition of infertility. The Surrogacy (Regulation) Bill, 2019 which was an exact replica of the 2016 bill, was placed before the Parliament. In 2021, the President passed the bill and Surrogacy (Regulation) Act 2021, was enacted.

On February 21,2024 amendments were made to the Surrogacy (Regulation) Rules, 2022. The paper analyses, whether banning commercial surrogacy altogether was a good call on the part of government, do the new amendments made in 2024 relaxes the surrogacy procedure further and critically analyse whether the restrictions on homosexual couples and single women to access surrogacy is correct in a country like India.

II. METHODOLOGY

The following paper is written after referring to several research articles on surrogacy and evolution of surrogacy practices in India. One has also studied the laws, bills, acts and guidelines that were passed in relation to surrogacy regulation in India. The foreign jurisdiction on surrogacy laws were studied and compared with Indian laws to know whether there are similarities or if some changes need to be made. The paper talks about the sudden controversial ban on the commercial surrogacy in India and its impact. After studying the recent amendments to the Surrogacy Regulation Rules 2022, the paper discusses the right of the homosexual couple and single women's access to surrogacy. Lastly, it provides policy recommendations to further ease the process of surrogacy in India under a regulated framework of laws.

III. LITERATURE REVIEW

In the course of the entire paper, several research articles, newspaper articles, blogs, bills, acts, guidelines were referred to. Following is the literature review of some important ones:

• The Times of India article, ‘Commercialization of Surrogacy in India: The effects of Globalisation’, gives a detail history of surrogacy laws in India, and mainly stresses on the point that since the world is more connected and open, wherein the LGBTQ+ rights are being recognized, India must allow the right to practise surrogacy to  the homosexual couples. In addition it also criticises the ban on commercial surrogacy by the Indian government stating that it violates the fundamental right of personal liberty under article 21, which allows the women the right to reproduce. While the article in depth traces the journey of surrogacy in India, in the name of globalisation, it ignores the fact that in most of the developed and developing countries surrogacy is either banned or only altruistic surrogacy is performed. Moreover the LGBTQ+ rights to surrogacy are not yet realised in most of the nations and keeping in view the traditional norms and values of the Indian society, it's not yet the right time to confirm those rights.
• A research article titled, ‘Surrogacy in India: History, Impact on poor and Facts, starts with an explanation on what exactly is the process of Surrogacy, history behind the surrogacy in India, the opinions of  law commission, eligibility criteria for the surrogate and also provides an insight into the international situation on surrogacy.
• The research paper titled ‘The advantages and disadvantages of altruistic and commercial surrogacy in India’ by Yuri Hibino, compares the two prominent types of surrogacy practised in the world, that is, altruistic and commercial surrogacy. It compares the advantages and disadvantages of both the surrogacies in an Indian scenario and recommends that a modification in the dichotomy between commercial and altruistic surrogacy is required.
• ‘Can’t have everything in Life:’ SC to Unmarried Women Seeking Permission to Use Surrogate is an article from The Wire, that gives details on how the Supreme Court denies a petition to avail surrogacy to unmarried women and gives a reasonable justification on the same.

IV. A CONTROVERSIAL BAN ON COMMERCIAL SURROGACY AND ITS IMPACT

It is more considerate to talk about this debate, with the help of examples that portray both good and bad effects of commercial surrogacy. In the first example, in 2008, a gay couple from Israel was able to have a child in India through surrogacy, when doing so was banned in Israel. They returned to Israel once the child was delivered. There have been various instances, among the film industry in India, for example, director Ekta Kapoor, a single woman, had a child through surrogacy.

Since 2002, many commercial surrogacy centres have been set up throughout India, one of them being Anand in Gujarat, which has become the cradle of surrogacy in India. A study at the centre revealed that separate hostels were set up for surrogates to live, separate spaces were provided for them and they were kept under observation for 9 months, to benefit the intended parents, it also allowed the surrogates to hide from their neighbours, since a stigma is attached to surrogates in India, and many people have a lack of knowledge that women get pregnant, without the intercourse. From Anand to other centres, a benefit from commercial surrogacy was that it had financial gains not only for surrogates but also for the surrounding due to the boost in medical tourism. Since the intended couples extend their stay, it is beneficial for hotels and baby goods shops. Also the surrogates tend to receive a substantial amount of money at a go, which can be useful for their families and help them bring out of poverty, which could not have been possible even in four years of labour work. Commercial surrogacy provides access to homosexual couples, individuals and foreigners a right to have a child. Notably, the reason for the boost of commercial surrogacy in India was the cheap cost of the entire process, availability of surrogates, since it's an easy way to earn money and an earlier exit from poverty. However, the absence of strict regulations on this entire process led to a complete ban on commercial surrogacy in India in 2015. The laxed laws led to the exploitation of surrogates at the hands of the centres.

In a true incident, a woman named ‘Radha’ went for surrogacy to release the land of in-laws out of lease. The family now owns a house but Radha’s body has become weak after two pregnancies[2]. Surrogate mothers were chosen on the basis of their physical appearances and religion. Most of the poorest women had to undergo two or three pregnancies to come out of poverty, and even so most remain poor, as the amount received is spent on consumer goods. Due to lack of defined laws, multiple embryo transfers are done, which leads to a rise in abortions. The question arose, was the answer to these problems, a complete ban on commercial surrogacy. Many scholars have pointed out that a ban on commercials is a violation of Article 21, that is the right to freedom, which guarantees women liberty to reproduce. It is the choice of the surrogate to become a mother and bear a child. By banning commercial surrogacy, the government has restricted the opportunity for a woman to take her family out of financial miseries.

When studying both sides, one observes that, although there are voices that still support some form of commercial surrogacy within a framework of laws, the entire concept of commercial surrogacy is in contradiction with the thinking of Indian society. The government does not want to boost medical tourism in India, by letting women rent their womb. Although commercial surrogacy is a way to earn a lump sum amount, no women opt to become a surrogate unless they are in dire need for money. Being a surrogate is a risky task, as it puts the life of a woman under threat. Commercial surrogacy though has its benefits, and a source through which women can bring their families out of poverty, it is not a dignified option to earn livelihood. In the Indian context, most surrogates belong to a poor family leading to their exploitation as they lack education. Hence a complete ban on commercial surrogacy seems the right way in case of surrogacy laws in India.

V. AMENDMENTS TO THE SURROGACY (REGULATION) RULES, 2022

The Surrogacy (Regulation) Act, 2021 came into force on January 25th, 2022. Under the provisions of this act, commercial surrogacy was prohibited and altruistic surrogacy was introduced. Earlier, intending couples had to wait for 5 years, to prove infertility, this provision was done away with. As per the new law, the intended couple must be a hetrosexual couple or a single woman(divorced or widowed), who could avail surrogacy. Surrogacy can be performed by an intending couple in case they have a medical condition that necessitates gestational surrogacy. According to Surrogacy Regulation Rules, 2022, gestational surrogacy can be opted under following circumstances:

• Woman with absent uterus or missing uterus/or abnormal uterus (like hypoplastic uterus/intrauterine adhesions/thin endometrium/ small unicornuate uterus, T-shaped uterus) or if the uterus is surgically removed due to any medical conditions such as gynaecological cancers.
• Intended parents/woman who has repeatedly failed to conceive after multiple IVF/ICSI attempts. (Recurrent implantation failure).
• Multiple pregnancy losses resulting from an unexplained medical reason. Unexplained graft rejection due to exaggerated immune response.
• Any illness that makes it impossible for a woman to carry a pregnancy to viability or pregnancy that is life threatening.

The surrogate mother must be a married woman with a child of her own, her age between 25 to 35 years and can be a surrogate only once in a lifetime. She must agree to be a surrogate without any financial incentive. In case of the intended couple, they must not have any biological child previously and medical condition is must in the intended mother. An unmarried woman, in the age group of 35 to 45 years may also qualify for surrogacy, but she may either be divorced or widowed and may not have a biological child earlier.  In March 2023, the government amended the rules, permitting only the use of intended couples' own gametes for surrogacy and not allowing the use of donor gametes. This further narrowed the scope of access to surrogacy for the intending couples, which was a cause of  distress. The amendment was challenged in Supreme Court (SC), wherein the SC observed the very objective of the surrogacy would be defied if such rules are implemented.[3] Thus, on February 21, 2024, new amendments were made to the Surrogacy (Regulation) Rules, 2022, that allowed the use of donor gametes, if either of the spouse among the intending couple suffers from the medical condition and is given a certificate by District Medical Board. However for single women opting for surrogacy, still requires the use of a woman's own eggs alongside donor sperm.

What remains absent throughout the history of surrogacy laws since 2015, is the permission for the homosexual couples and single women (not married) to use surrogacy as a means to have a child. Several petitions have been registered for such concern, but the law remains unchanged.

VI. HOW DOES THE NEW AMENDMENT AFFECT THE LGBTQ COMMUNITY?

The Surrogacy (Regulation) Act. 2021, excludes LGBTQ+ community and live-in couples from use of surrogacy. The reason stated by the government is that it would lead to the misuse of surrogacy. The root reason can be the fact that, homosexual relationships though decriminalised are not legal in India. This creates a question on the safety of the child born through surrogacy. Unlike the West, family structure and relations are very much integrated and rooted in Indian society. It is believed that the presence of both parents is essential for the right upbringing of a child. Although controversial, there are an increasing number of examples where the children are suffering through psychological disorders due the distressed family background. It is definitely not correct to predict that the child born to an hetrosexual couple is well brought up and in cases of LGBTQ and live-in couples always suffer from psychological problems, but the chances are high in the latter. It's a long road before surrogacy is probably legalised for LGBTQ community and living couples since, it is not yet legalised in India and when altruistic surrogacy itself comes with a lot of restrictions, the chances of surrogacy rights for LGBTO  community is far less. Giving them rights may also contradict with the larger political and social interest as many metropolitan cities may normalise it but most of India is still rooted in ancient social norms where homosexual relations and live-in couples itself are stigmatised.

VII. WHY CAN’T SINGLE WOMEN AVAIL SURROGACY IN INDIA?

Surrogacy for single unmarried women is not allowed in India. A petition was filed in the Supreme Court against the law, where the bench remarked that, there are other ways for women to have children where she can either get married or consider adoption. Speaking on the same, the bench said, “It is difficult to rear and bring up a surrogate child at the advanced age of 44. You cannot have everything in life. Your client preferred to remain single. We are also concerned about society and the institution of marriage. We are not like the West where many children do not know about their mothers and fathers. We do not want children roaming here without knowing about their fathers and mothers.”[4] “Science has advanced but not the social norms and that is for some good reason,” the court said.[5]

The above verdict indicates that the Indian society is not yet open to such changes and perceiving from what the West is facing, it is taking conscious steps in the direction. Further reasons to not allow surrogacy for single women could be the concern regarding the wellbeing of children received in single-parent households. There also exists this fear that it may lead to commercialization of surrogacy. And the most obvious is to preserve the traditional family values which makes us different from the West. In the current scenario, surrogacy laws may not be in favour of single women, however there are prospects with ever changing global scenarios and mindsets that the laws may be evolved in their favour.

VIII. SURROGACY REGULATIONS: AN INSIGHT INTO FOREIGN JURISDICTION

Surrogacy is legal in most of the countries around the world. In some countries laws are in place that guide surrogacy whereas some countries have a complete ban on surrogacy and have termed it illegal. Since with legality comes safety, parents consider places where surrogacy is guided by laws. It is important to note that in most of the countries commercial surrogacy is banned and only altruistic surrogacy is allowed.  Commercial surrogacy is banned in Canada, Australia, Brazil, England and New Zealand. These countries only account for altruistic surrogacy. Adding to the list is now India which has put a ban on commercial surrogacy. In Canada, foreign nationals are also allowed to access surrogacy, but since no monetary compensation can be paid to the surrogates, except the medical expenses, there is a waiting list of surrogate mothers. If there is a donor, it must be identified in case of surrogacy in Australia. The law in both the countries, does not allow homosexual couples to avail surrogacy.

 Now comes countries like Germany, France, Spain, Portugal, Bulgaria and Italy where all forms of surrogacy are banned. It is important to note that most of these countries are developed countries. Practising surrogacy is even considered illegal in Germany. Not only in Europe but many countries in Asia too, do not allow surrogacy like China, Pakistan, Saudi Arabia and Japan.

The USA is the most preferred option, where surrogacy is available not only for hetrosexual couples but also for homosexual relations and single mothers. However not all states in the USA allow for commercial surrogacy, parents must find out which states have laws that allow commercial surrogacy.  For example in the state of California all forms of surrogacy is allowed, in New Jersey only altruistic surrogacy is allowed whereas in states like New York, North Dakota and Indianna, surrogacy is not allowed.

Talking about the countries which have become a surrogacy hub since commercial surrogacy is practised in these countries, the first name that pops is Georgia. Commercial surrogacy is legal in Georgia, however only married heterosexual couples can opt for surrogacy, which again put a ban on gay couples' right to surrogacy. Ukraine was a surrogacy hub, until Russia’s invasion of Ukraine. Commercial surrogacy was regulated, but only for married heterosexual couples which allowed foreigners. It excluded gay couples and single mothers from the ambit of surrogacy. Surrogacy is also allowed in Russia, however due to the criticism from the religious groups, they may soon implement a law barring foreign nationals from availing surrogacy.

Since Thailand and Cambodia prohibited commercial surrogacy, Laos has become a new surrogacy destination. There are no laws in Laos that regulate surrogacy and neither a ban is put on surrogacy practice. Compensated surrogacy for foreigners is also permitted.

Considering the above condition of surrogacy laws in above nations, India seems not to be lacking behind in terms of evolution of the laws, but seems to follow the global trend. Like most nations, India has put a ban on commercial surrogacy, citing the exploitation of surrogates and the profit making business by the middleman and clinics. It is important to note that, most of the developed countries in Europe and Asia have a complete ban on surrogacy. In the USA too, it is permissible in only a few states.

There seems a pattern wherein, it is the developing or underdeveloped countries where commercial surrogacy is practised, however now they too seem to put a ban on it, notably India and Thailand. Surrogacy laws in India when compared to foreign jurisdiction, seem not much to contradict, in fact being more in line with the international laws.

What is more vibrant is the ban on homosexual couples and single mothers from right to surrogacy in almost all countries, barring a few. Thus, it can be said that surrogacy laws face challenges, not just in India, but also in most jurisdictions, and there is a need for them to evolve.

IX. POLICY RECOMMENDATIONS

A. Easing the Criteria to Become a Surrogate

• According to the Surrogacy Regulations 2022, a surrogate must be a married woman, have a child of her own, and is restricted from donating her eggs and gametes to an intending couple if required.
• [1] [2] In order to give more relief to the intended couple, and to search for a surrogate, some relaxation in the above criteria seems necessary.
•  The recommendation proposes that the surrogate can be any woman, not necessarily married or have a child of her own. Moreover, the surrogate must be allowed to donate her egg gametes if the intending couple needs them.

B. Paid Leave of 1 Month to Surrogate Post Surrogacy

•  In India, post-pregnancy, if the mother is a working woman, she has a right to take a paid maternity leave of 6 months. This is provided for the mother to recover from childbirth and bond with the baby. This is a legal leave granted by the government and even the private sector has to grant it to the women.
• For a surrogate mother, although she may have to hand over the child to the intended parents, as a woman she still requires time to recover from post-childbirth and become psychologically stable from the emotion of departing from the child.
• It is recommended that the government make a regulation that legally mandates such a provision, which is enforceable in both the private and public sectors.

C. Mandatory Counselling Certificate for Intending Parents and Surrogate

• As per the Surrogacy Regulation Rules 2022, counseling is mandatory for intended parents and surrogates.
• However, there are chances that such clauses may be violated and there are lack of regulations to track them
• Counseling is necessary to make the surrogate and intended parents mentally and emotionally prepared for the surrogacy. The surrogate must have a brief idea of the risk of surrogacy and the legal provisions.
• Hence the clause must be made more stringent wherein the parties must demonstrate a certificate, that they have spoken to a counsellor and taken legal advice from a solicitor for at least 3 months, before advancing for surrogacy. The counselor must only be a government-licensed practitioner, to avoid cases of forged certificate making.

Conclusion

The surrogacy laws in India have gone from being absent to being too vigilant. The reason for such a move is the consequences that were seen in the absence of any laws, the exploitation, and the discriminatory practices that took place with the surrogate mothers. Banning the practice of commercial surrogacy could also be seen as an effect of foreign jurisdiction wherein most of the countries have banned commercial surrogacy, including the UK, whose laws are copied in India, India being the former colony of the UK. As discussed above a complete ban on commercial surrogacy is a correct option in the Indian context, which stops the exploitation of poor women. The ban on gay couples and single women having children through surrogacy seems not to be removed in the near future, due to concerns regarding the welfare of the child and the fact that homosexual marriages are not legalized in India. In such an absence, the property rights, along with other rights and the security of the child is put to test. Hence, only after same-sex marriages are legalized in India, can one think of the right to surrogacy for homosexual couples. Surrogacy Bill 2021 and the succeeding amendments are a great step towards legalizing the practice of surrogacy in India and giving a right of parenthood to those who can\'t have it naturally. However, more relaxations are needed in the laws, wherein one can access it easily who wishes to pursue the root of parenthood.

References

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Copyright © 2024 Radhika Lele. This is an open access article distributed under the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.