October 17, 2023

Surrogacy is a method of assisted reproductive technology where a woman carries and gives birth to a child for another person or couple who cannot conceive or carry a pregnancy to term. Over the years, India has emerged as one of the leading destinations for surrogacy due to its favourable legal provisions and comparatively lower costs. However, the surrogacy landscape in India has undergone significant changes in recent years, with the introduction of new regulations and amendments to existing laws.

This article aims to provide a comprehensive analysis of the legal provisions, case laws, and recent amendments pertaining to surrogacy in India.

Regulation of Surrogacy

Surrogacy in India was initially unregulated, leading to concerns about exploitation of surrogate mothers and ethical issues surrounding the practice. To address these concerns, the Indian government introduced the Assisted Reproductive Technology (ART) Regulation Bill in 2010, which aimed to regulate surrogacy and protect the rights of all parties involved. The bill proposed that only Indian citizens could avail of surrogacy services, and it prohibited commercial surrogacy while allowing altruistic surrogacy under certain conditions. Altruistic surrogacy refers to cases where the surrogate mother does not receive any financial compensation beyond medical expenses and insurance coverage. However, the 2010 bill did not become law, and it was subsequently replaced by the Surrogacy (Regulation) Bill, 2016.

The 2016 bill sought to further regulate surrogacy by banning commercial surrogacy altogether and limiting it to Indian married couples who have been unable to conceive after five years of marriage. It also prohibited unmarried couples, single individuals and same-sex couples from availing of surrogacy services.

In 2019, the Indian government introduced the Surrogacy (Regulation) Bill, 2019, which aimed to replace the 2016 bill and further regulate surrogacy in India. The 2019 bill expanded the scope of eligibility for surrogacy by allowing widows and divorcees to avail of surrogacy services. It also removed the five-year waiting period for couples seeking surrogacy due to medical conditions.

The Surrogacy (Regulation) Act, 2021 is the existing legislation to the surrogacy in India. It seeks to provide comprehensive set of guidelines to govern surrogacy arrangements in the country.

The key features include:

  1. Allowing altruistic surrogacy and prohibiting commercial surrogacy
  2. Expanding the eligibility criteria for intending couples covering heterosexual married couples, widows, and divorcees
  3. Excluding couples with one child, foreign nationals, in-residence partners or people-in live in relationships, single men and women, gay and lesbian couples and widowers
  4. Establishment of a National Surrogacy Board and State Surrogacy Board to regulate surrogacy at the national and state levels.
  5. Protecting the rights of surrogate mothers and children born through surrogacy, such as ensuring their health and well-being, confidentiality.

Case Laws shaping surrogacy in India

The legal framework surrounding surrogacy in India has also been shaped by several landmark case laws. One such case is the Baby Manji Yamada v. Union of India (2008) which highlighted the need for clear guidelines and regulations regarding surrogacy. In this case, a Japanese couple sought custody of a child born through surrogacy in India, but faced legal hurdles due to the absence of specific laws governing surrogacy.

The Supreme Court of India, in its judgment, emphasized the importance of protecting the best interests of the child and called for comprehensive legislation to regulate surrogacy. This case played a pivotal role in prompting the government to introduce the ART Regulation Bill in 2010.

Another significant case is the Jan Balaz v. Anand Municipality (2009) where a German couple sought custody of their twin children born through surrogacy in India. The case raised questions about the legality of surrogacy arrangements and the rights of surrogate mothers. The court ruled that the children’s birth certificates should mention the names of the intended parents, providing legal recognition to surrogacy arrangements.

Analysis of the 2021 Surrogacy Regulation Act

It is argued that surrogacy Act 2021 excludes a wide category of persons from availing surrogacy services like single woman, Trans persons, homosexual couples, widowed men, live-in-relations couples. This non-recognition of the right of these couples to have a child through surrogacy tends to infringe their right to life under Article 21 of the Constitution.

Surrogacy in India has evolved significantly over the years, from an unregulated practice to a regulated industry governed by specific legal provisions. While these amendments have brought much-needed clarity and regulation to surrogacy in India, there are ongoing debates about the exclusion of certain groups like homosexual couples from availing of surrogacy services. It is essential for lawmakers to strike a balance between protecting the rights of surrogate mothers and ensuring access to surrogacy for those who genuinely require it.

Significance of the topic

In the judicial examination syllabus, a significant portion has been devoted to the essay part. The regulation of the surrogacy industry remains in the news now and then. That is why judiciary coaching suggests this as an important topic that may be asked in essays, as generally the areas of current legal issues form the topic of essays. Judiciary coaching accordingly places emphasis on these topics to have the required knowledge.

Leave a Comment