Analysis of Surrogacy Law in India

 Analysis of Surrogacy Law in India

Priyanka Chopra Jonas and husband Nick Jonas few days back announced welcoming a baby through surrogacy. Now the question arises that what is surrogacy and what are the Surrogacy Laws in India?

Surrogacy comes from the Latin word surrogare, which means "to take another's position." It is the act of bearing another person's child. The growth in infertility rates in India drew more attention to surrogacy. Surrogacy can be divided into two categories. Each has its own set of dangers.

Surrogacy's History: From a legal standpoint, surrogacy began roughly 30 years ago. Surrogacy, on the other hand, is commonly accepted in most societies in retrospect. In 1881, the very first successful artificial insemination surrogacy took place in an unethical manner. Since then, it has received a great deal of criticism and controversy. Until 1976, when a lawyer created the first standard surrogacy agreement, there was no legal view. The surrogate mother was not compensated in any way. In the year 1978, the first IVF (In Vitro Fertilization) baby was born. In any country, there was no legal enforceability.

There are two types of surrogacy, as previously stated. They are as follows:

1)Traditional: The surrogate mother and the child form a maternal attachment in traditional surrogacy. Fertilization takes place using the surrogate mother's eggs and the donor's sperm, or the sperm of a male who wants a child. Surrogacy, whether partial or traditional, makes the surrogate mother the biological mother.

2)Gestational surrogacy: It is also known as complete surrogacy, is a type of surrogacy in which the surrogate mother has a less emotional and genetic relationship to the baby. Someone else donates the eggs and sperm in this case.

There are two more types of surrogacy in terms of money and advantages for the surrogate mother. They are as follows:

Surrogacy in which the surrogate mother receives no compensation other than medical expenses is known as altruistic surrogacy. Commercial surrogacy refers to the commercialization of the surrogacy process, in which the surrogate mother is compensated financially.

The Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act was enacted on December 25, 2021, with President Shri Ramnath Kovind's approval. Commercial surrogacy is defined under the Act as the buying and selling of human embryos; hence, commercial surrogacy is prohibited throughout the country. Surrogacy has additional regulations as a result of the Act, and a single man or woman cannot use surrogacy. The Act requires that no commercial surrogacy advertisements be printed or broadcast.

The Act permits altruistic surrogacy as a charitable act between close relatives who sign a contract for the same. The intended couples must be between the ages of 25 and 35. The act made the eligibility certificate as well as proof of infertility for either the husband or the wife essential. The couple must get a parentage order from a Magistrate of first-class or above.

The intending lady can be a married woman with a child of her own. The surrogate mother can withdraw her agreement at any time before the embryo is implanted, according to the Act. And she should be well educated about the dangers and repercussions before accepting. The Act also requires the couple to insure the mother and the child. It further stated that the couple should not abandon the child born as a result of the surrogacy arrangement.

If anyone, including the intended couple, pushes the woman to terminate her pregnancy, she has the right to report it to the proper authorities.

Surrogacy Clinics must be registered under Chapter 4 of the Act. To operate, the clinic must have a Certificate of Registration. The National Assisted Reproductive Technology and Surrogacy Registry was formed for the aim of registering surrogacy facilities.

A board named the National Assisted Reproductive Technology and Surrogacy Board was formed, and it is made up of 23 professionals. The Chairperson must sign and authenticate every decision and order of the Board. Every crime must be cognizable, non-bailable, and non-compoundable.

The clinic is required by section 46 of the Act to keep all records, forms, consent reports, correspondence, and other documents related to surrogacy for a period of twenty-five years. If a clinic is facing criminal charges, it must keep the charges outstanding until the case is resolved.

Punishments: According to the Act, anyone who does the following will be punished:

1)A child delivered through surrogacy is abandoned.

2)Performs sex selection.

3)Organize or run an unlicensed racket or gang to engage in surrogacy-related activities.

4)Taking advantage of the surrogate mother or the child.

5)Imports or assists in the importation of human embryos.

6) Publish, distribute or advertise any information about commercial surrogacy.

Shall be punishable with:

1)Imprisonment of a term which may extend to 10 years.

2)A fine which may extend to ten lakh rupees.

Any couple who does not perform altruistic surrogacy and contacts a medical practitioner for the purpose of conducting commercial surgery in an unethical manner can be sentenced to five years in prison and fined up to five lakh rupees. Anyone who violates the terms of this Act or its rules will be sentenced to a maximum of five years in prison and a fine of 10 lakh rupees.

Conclusion:

In India, surrogacy is legal. However, commercialising it is against the law. Surrogacy is a humanitarian act that is legally sanctioned. It is against the law in India. Commercial surrogacy should not be chosen by any couple. Surrogacy falls under the category of women's reproductive options, and it is recognised as a fundamental right under the Article 21 of the Indian Constitution.

                                                                   By Shagun Mahendroo