In News:

• The petitioners have challenged the exclusion of single men and mothers from availing surrogacy under the Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021.

What’s in Today’s Article:

• Surrogacy (Regulation) Act, 2021 – About, Key Provisions, issues,
• The Assisted Reproductive Technology (Regulation) Act, 2021 or The ART Act, 2021
• News Summary

Surrogacy (Regulation) Act, 2021

About

• The Surrogacy (Regulation) Act 2021 came into effect from 25th January 2022.
• The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
• It regulates the practice and process of surrogacy by constituting National Assisted Reproductive Technology and Surrogacy Board.

Key Provisions

• Regulation of surrogacy:
  • It prohibits commercial surrogacy, but allows altruistic surrogacy.
  • Altruistic surrogacy involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.
  • Commercial surrogacy includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.
• Purposes for which surrogacy is permitted:
  • Surrogacy is permitted when it is:
    • for intending couples who suffer from proven infertility;
    • altruistic;
    • not for commercial purposes;
    • not for producing children for sale, prostitution or other forms of exploitation; and
    • for any condition or disease specified through regulations.
• Eligibility criteria for intending couple:
• The act defines eligibility criteria for the intending couple in order to prevent the misuse.
• It states that the intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
• Eligibility criteria for surrogate mother:
  • To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:
    • a close relative of the intending couple; a married woman having a child of her own;
    • 25 to 35 years old;
    • a surrogate only once in her lifetime; and
    • possess a certificate of medical and psychological fitness for surrogacy.
  • Further, the surrogate mother cannot provide her own gametes for surrogacy.
• Registration of surrogacy clinics:
  • Surrogacy clinics cannot undertake surrogacy related procedures unless they are registered by the appropriate authority.
  • Clinics must apply for registration within a period of 60 days from the date of appointment of the appropriate authority.
• National and State Surrogacy Boards:
  • The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.
  • Functions of the NSB include - advising the central government on policy matters relating to surrogacy; laying down the code of conduct of surrogacy clinics; and supervising the functioning of SSBs.
• Parentage and abortion of surrogate child:
  • A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.
  • An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.
  • This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.
  • Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.
• Offences and penalties:
  • The offences include:
    • undertaking or advertising commercial surrogacy;
    • exploiting the surrogate mother;
    • abandoning, exploiting or disowning a surrogate child; and
    • selling or importing human embryo or gametes for surrogacy.
  • The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.

Issues

• Banning commercial surrogacy has created its own set of challenges
  • The banning of commercial surrogacy moves from the rights-based approach to a needs-based approach.
  • In other words, it removed the women’s autonomy to make their own reproductive decisions and right to parenthood.
• No economic value to women’s work is recognised
  • The Act reinforces traditional patriarchal norms of our society that attributes no economic value to women’s work.
  • The altruistic surrogacy model expects the women to go through the physical and emotional pain and labor of giving birth to a child only out of compassion.
• Other challenges
  • Having a relative as a surrogate mother may lead to emotional complications not only for the intending parents but also for the surrogate child.
    • There is great deal of risking the relationship in the course of surrogacy period and post birth.
  • In an altruistic surrogacy, there is no third-party involvement.
  • A third-party involvement ensures that the intended couple will bear and support the medical and other miscellaneous expenses during the surrogacy process.
• Against LGBTQ+ community
  • The Act is a clear slap on the face of the LGBTQ+ community and single fathers who want to have a child.
  • The LGBTQ+ community forms 15% of the total population and around 20% of the population going for surrogacy accounts for single parents.
  • This law comes as a backlash to the other laws passed in favour of the LGBTQ+.

The Assisted Reproductive Technology (Regulation) Act, 2021 or The ART Act, 2021

• It provides a system for the implementation of the law on surrogacy by setting up of the National Assisted Reproductive Technology and Surrogacy Board.

News Summary

• Two petitioners have challenged their exclusion from availing surrogacy under the Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021.
  • The petitioners include a single man and a woman who is also a mother and desires a second child.

Questions posed by the petitioner to the Delhi High Court

• Why can’t a single man or a married woman beget a child through surrogacy?
  • Petitioners contend that personal decision of a single person about the birth of a baby through surrogacy is guaranteed under Article 21 of the Constitution.
    • i.e., the right of reproductive autonomy is a facet of the right to privacy.
  • Does such a denial not result in the violation of the right to privacy?
  • The petitioners also demanded that commercial surrogacy be decriminalised.
  • The petition also said that the best eligibility criteria to maximise the chances of finding the best surrogate mother would be any healthy woman above the age of majority.
    • Hence, the needless conditions of being genetically related, of a particular age, married and already having at least one child only constrict the universe of available candidates who may otherwise become healthy surrogate mothers.