Ever wondered if surrogacy is a big no-no in India? Well, guess what! Shah Rukh Khan's third bundle of joy, AbRam, proves otherwise. How? well...AbRam was born through surrogacy as it is very much legal in India. Are all forms of surrogacy legal though? We will answer that in the coming paragraphs.
Learning what is meant by surrogacy will be easy if you are a "Friends" fan because then you would remember Phoebe being pregnant and that she was a surrogate. If you are not a "Friends" fan, the following is the meaning of surrogacy to help you understand the topic we will deal with in this article.
Surrogacy is basically:
where a surrogate (woman)
agrees to carry and give birth to a child
of an intended couple/person who could not have children for medical conditions, pregnancy risks, etc.
Surrogacy definition as per Indian Law
Section 2 (zd) of the Surrogacy (Regulation) Act, 2021 (Surrogacy Act) defines "surrogacy" as a practice whereby one woman bears and gives birth to a child for an intending couple with the intention of handing over such child to the intending couple after the birth.
The definition provided under the Act is different from the general definition because, in India, only couples and not a single person can take the help of surrogacy to have a child. Also, the term intended couple here means a man and a woman above the age of 21 years and 18 years, respectively.
Types of Surrogacy
Traditional: In this type of surrogacy, the surrogate is the child's biological mother in the sense that the surrogate's egg is combined with that of the intended sperm of the father/ donor. Traditional surrogacy is not a common practice anymore since the introduction of modern technology.
Gestational: Gestational surrogacy is when the egg implanted in the surrogate is not that of the surrogate herself. Thus, the surrogate does not share her DNA with the child. The child is related to the egg and sperm donor. In this case, the surrogate is also known as a gestational carrier.
Altruistic: In this type, the surrogate is only paid for the medical expenses incurred during surrogacy.
Compensated: Compensated, often referred to as commercial surrogacy, is when the surrogate is paid beyond the medical expenses, as in the case of altruistic surrogacy.
Which type of surrogacy is legal in India?
Only gestational surrogacy through altruistic methods is permitted in India, and commercial surrogacy is banned. In the Act, altruistic surrogacy is defined as surrogacy where no additional fees, charges or expenses are paid to the surrogate. In contrast, Commercial surrogacy is defined as the commercialization of surrogacy services or the process involved.
But has commercial surrogacy been banned since always? No.
History of surrogacy law in India
A draft prepared by the National Guidelines for the Accreditation, Supervision and Regulation of Assisted Reproductive Technology Clinics in 2002, approved in 2005, allowed commercial surrogacy. While it allowed surrogates to get more compensation, the unregulated practice raised some concerns, like the exploitation of surrogates and abandonment of the child born out of surrogacy.
The Law Commission of India, in its 228th report, recommended banning commercial surrogacy to prevent misuse of the process. India banned the practice of commercial surrogacy in the year 2015, and it is prohibited under the Surrogacy Act.
Punishment for commercial surrogacy in India
Section 38 of the Surrogacy Act provides for offenses and penalties. If any commercial surrogacy activity is established, the offense invites imprisonment for up to ten years and a fine, which may extend to ten lakh rupees.
Important provisions of the Act
Regulation of surrogacy clinics- Section 3
Regulation of surrogacy procedures- Section 4
Written and informed consent of surrogate mother- Section 6
Prohibition of abandonment of child born out of surrogacy- Section 7
Registration of surrogacy clinics- Section 11
Judicial Pronouncements on Surrogacy
The Supreme Court, in this case, was faced with the custody of a child born out of surrogacy. The child, Baby Manji Yamada, was born to Japanese parents who got divorced before the child's birth. The biological father wanted the child, but as there were no provisions in law dealing with such a scenario, the Supreme Court intervened, and custody was given to the father. This landmark case raised several issues relating to surrogacy, like the rights of a child born through surrogacy.
Jan Balaz and his wife in Germany arranged a surrogacy using donor eggs and a surrogate mother; the result was the birth of two surrogate twins. However, because German law strongly forbids surrogacy and does not recognize it as a way to establish parenting, the German embassy later refused to grant passports to the surrogate child. As a result, the Balaz couple had no legal filiation of the children. The father moved to Gujarat High Court, which observed that as the surrogate was an Indian national, thus, the twins "would be treated" as Indian nationals.
After the implementation of the Surrogacy Act, only Indian couples are allowed to have children through surrogacy.
Limitations of the Act
Non-inclusion of single, unmarried people, live-in relationship couples: Only married couples are considered as the intended couple for the purpose of the Act, which is discriminatory against those who cannot have a child, like single men and women, couples in a live-in relationship who cannot bear a child for medical reasons.
Non-inclusion of persons belonging to the LGBTQIA+ community: Apart from those mentioned above, persons from the LGBTQIA+ community are also excluded from the Act. Although same-sex marriage is still not legally recognized in India, the definition in the Act mentions explicitly who are covered under the Act, and it is restricted to married man and woman and not just any couple.
A complete ban on commercial surrogacy: While banning commercial surrogacy is well-founded, a proper regulation relating to it can prove to be more helpful to the surrogate mother.
Definition of surrogate mother: The Act defines a surrogate mother as someone who is genetically related to the intended couple or intended woman, thereby limiting the scope of the Act. Although the Karnataka High Court recently observed that the surrogate mother need not be genetically related to the intending couple (H Siddaraju v. Union of India), the Act still remains the same.
The Surrogacy (Regulation) Act is a relatively new law; thus, it is understandable that only a few people know it. However, rules and regulations around surrogacy have been in place since the early 2000s; therefore, the concept has been introduced previously. While the Government has taken some significant steps to regulate surrogacy to help all the parties involved, the stigma around it and the exclusion of certain categories of persons can be worked upon.
FAQs on the Legality of Surrogacy
Is surrogacy illegal in India?
Ans. No, surrogacy is legal, but only altruistic surrogacy is legal in India.
Can an unmarried woman have a child with the help of a surrogate mother?
Ans. No, only widows or divorced women can have a child through a surrogate mother.
What is the punishment for commercial surrogacy in India?
Ans. Imprisonment for up to 10 years and a fine of up to 10 lakhs.
What is the age limit for a surrogate mother?
Ans. 25-35 years.