What is Surrogacy?

India introduced new laws to regulate surrogacy and assisted reproductive technology (ART) to prevent exploitation and ensure ethical practices. The Surrogacy Regulations Act, 2021 allows infertile married Indian couples to use altruistic surrogacy. Only close, married female relatives aged 25-35 can be surrogates. This approach aims to prevent exploitation but limits intended parents' options and raises concerns about fairness for potential surrogates. Assisted Reproductive Technology (Regulation) Act, 2021 offers broader assisted reproductive technology (ART) options like IVF with donor gametes. Unlike surrogacy, ART allows couples or individuals to pursue pregnancy themselves. The Act is more inclusive, permitting single women, live-in couples, and even foreigners (unlike surrogacy).

India's rise as a surrogacy hub due to affordable infertility treatment attracted international patients, but also exposed a dark side. In 2012, this “industry” came to be valued at $500 million and India was the surrogacy capital of the world. Unequal opportunities led some women to commercial surrogacy, raising concerns about exploitation and ethical dilemmas like sex selection and commoditization of children. The lack of regulations necessitated legislation to curb unethical practices and protect surrogate mothers.

Surrogacy (Regulation) Act, 2021 was introduced to provide regulatory mechanism for surrogacy in India which has uptill now been unregulated. This will help make surrogacy a safe and non-exploitative practice in India. It has also ironed out international legal issues which were arising due to foreign couples using surrogate mothers in India leading to confusion of citizenship for the surrogate child.

• Definition: Surrogacy is when a woman agrees to carry a pregnancy for another couple and hand over the child after birth.
• Altruistic Surrogacy Only: Only close relatives of the intended parents can be surrogate mothers. They must be married and between 25 and 35 years old. Surrogates cannot receive financial compensation beyond their medical expenses.
• Protections for Surrogate Mothers: To ensure their well-being, the Act mandates a fitness certificate to confirm the surrogate's ability to carry a pregnancy. It also requires insurance coverage and limits a woman to being a surrogate only once. Additionally, a surrogate mother has the right to withdraw from the process at any point before the embryo implantation.
• Eligibility for Intended Parents: Only infertile married couples can pursue surrogacy. Both partners must have a proven medical need and obtain a certificate of essentiality. The intended wife must be between 25 and 50 years old, and the husband between 26 and 55. Neither partner can have any biological, adopted, or previously surrogate children.
• RegulationRegulation: The Act establishes National and State Surrogacy Boards appointed by the central and state governments, respectively. These boards will oversee and regulate surrogacy clinics.
• Abortion: Termination of the pregnancy can only occur with the surrogate mother's consent and approval from the appropriate authority under the Medical Termination of Pregnancy Act of 1971.

Surrogacy Regulation Act, 2021 bans commercial surrogacy, with penalties including a 10-year jail term and a fine of up to 10 lakh rupees.
In India, only altruistic surrogacy is permitted with no monetary gains to the surrogate mothers.

The legal landscape surrounding donor eggs in Indian surrogacy has seen some twists and turns.

• In March 2023, a government amended the Act to restrict surrogacy to using only the intended couple's own gametes. This posed a challenge for women unable to produce eggs themselves.
• The Supreme Court intervened and allowed a woman in such a situation to proceed with surrogacy using a donor egg. The court's interpretation clarified that a genetic link to the husband, not necessarily the intended wife, is sufficient under the law.
• This reinforces the principle behind gestational surrogacy, which prioritizes the woman's medical reasons for seeking a surrogate. Court said that surrogacy is "woman-centric," allowing a path to parenthood for couples where the wife has a medical condition preventing pregnancy.
• Court reiterated that Rule 14(a) of the Surrogacy Rules allows gestational surrogacy for those women who have medical or congenital conditions. Hence, mere connection with the husband is also sufficient.

• Discrimination: The Act's requirements for marital status, age, and gender of surrogates are challenged for being discriminatory.
• Undermines Autonomy: Banning commercial surrogacy removes women's right to make reproductive choices and pursue parenthood.
• Altruistic Model Concerns: Free surrogacy with close relatives raises ethical issues and limits choice for intended parents.
• Limited Choices: Finding eligible married female relatives as surrogates can be very difficult.
• Infertility Certification: Requirement for proof of infertility is seen as a violation of privacy under Article 21.

• ART Procedures: Assisted reproductive technology (ART) offers options like sperm/egg donation, in vitro fertilization (IVF), and gestational surrogacy.
• Clinic Registry: A national database will track all ART clinics and banks in India.
• Eligibility: The Act allows Indian men (21-55) and women (21-50) to access ART services. Foreigners are also permitted.
• Donor Eligibility: Sperm donors must be 21-55 years old, and egg donors 23-35 years old. Women can only donate eggs once, with a maximum of seven eggs retrieved.
• Child's Rights: Children born through ART have the same rights and privileges as a natural child of the commissioning couple. The donor has no relations/ rights with the child.
• Donor Insurance: Couples using ART must provide insurance for the egg donor in case of any medical issues.

The Surrogacy Act (2021) and the Assisted Reproductive Technology (ART) Act (2021) are two sides of the coin when it comes to assisted pregnancy in India. While both aim to regulate practices in this field, they differ in their target audience and the level of involvement required. A key difference lies in the definition of infertility. The Surrogacy Act sets a higher bar, requiring couples to prove they haven't conceived after five years of unprotected sex. The ART Act, on the other hand, allows couples to seek assisted methods after just one year of trying.

Another distinction is the role of a third party. Surrogacy, as the name suggests, always involves a surrogate mother carrying the embryo for the intended parents. Conversely, ART procedures can be undertaken by the couple themselves, without needing someone else to carry the pregnancy.

Eligibility is another point of divergence. The Surrogacy Act restricts its services to married Indian couples. The ART Act, however, is more inclusive, extending access to live-in partners, single women, and even foreign individuals. Notably, while the Surrogacy Act prohibits foreigners from commissioning surrogacy, the ART Act welcomes them to explore other assisted reproductive options.