Surrogacy (Regulation) Act, 2021: A Case Of Good Intentions Leading To Bad Outcomes

In December, 2021 the Central Government enacted the Surrogacy (Regulation) Act, 2021 to regulate the practice of surrogacy in India. The Bill basis itself in the recommendations made by the Law Commission of India in its 228th Report. However, the Act is a classic case of paving the road to hell with good intentions. The Law Commission had recommended for adoption of a pragmatic approach towards enforcing the prohibition on surrogacy practices and regulation of Assisted Reproductive Technology (ART) procedures. Though Indian Council of Medical Research required adherence to the National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India; but the Guidelines were toothless as also evident from the emerging cases of exploitation of the surrogate mothers. Several legal battles had also been fought over the custody and parentage of children born through surrogacy and ART measures where the third-party gametes would be involved for impregnating purposes. In such circumstances, a legislative intervention was necessitated and implemented through Surrogacy (Regulation) Act, 2021, Surrogacy (Regulation) Rules, 2022, Assisted Reproductive Technology (Regulation) Act, 2021 (‘ART Act’) and Assisted Reproductive Technology (Regulation) Rules, 2022. Despite several amendments and rounds of discussions, the Surrogacy Act remained riddled with loopholes and inconsistencies leading to bizarre circumstances.

‘Keep it in the family’ Approach

In the Indian society, the notions of parenthood, especially motherhood, has been associated with the pious and selfless dedication of the parents towards children. Hence, initiating the parental bond through a contractually bound transaction with a third-party is bound to imbue discomfort. It was believed that cases of exploitation of the surrogate mothers were also emanating from the idea of treating females as mere wombs for hire. The cases like Baby Manji Yamda led to bureaucratic hassle and judicial interference in order to prove and acquire the custody of the surrogate child for non-Indian parents.

The Government brought forth two solutions for the same. One, no transactional relationship to bring forth a child. Two, no international tourism for surrogacy. In the zeal to preserve the traditional family fabric, the Government went a step ahead and mandated conformity with a typical heterosexual married Indian man and woman set-up with a necessary medical indication under Section 2(r) of Surrogacy Act read with Rule 14 of the Surrogacy Rules in order to gain access to the reproductive services for surrogacy. Another limitation upon the qualifying couple is to possess a medical indication pertaining to reproductive organs only, hence, a couple who is suffering from a disability, a hereditary disease such as cancer, or diabetes, must risk the child carrying the diseases as the genetic relation of the child with at least one intending parent is mandatory under the Surrogacy Act. 

The provisions appear drastic especially considering the qualification of ‘ever-married’ even for a single woman intending mother under Section 2(s) and surrogate mother under Section 4(iii)(b)(I). The severity is concerning especially given the fact that LGBTQ+ relationships and live-in relationships have been granted judicial sanction and the exclusion of single woman and man bears no relation with the financial, emotional, social and psychological capacity of a person to raise a child. 

The measures of the Surrogacy Act take a turn for the worse due to the condition that only the ‘ever-married’ female members of the family must ‘volunteer’ out of their own accord to offer themselves as a surrogate mother. Moreover, the actions of providing any encouragement or actively seeking out the surrogate mother by reaching out to the relatives is not only prohibited but also penalized under Section 5 of the Surrogacy Act. But if the said female member is unmarried or does not have a child of her own as required under Section 4(iii)(b)(I) then the Indian married couple shall be deprived of the joy of their own progeny despite the several scientific advancements made in the recent years by our nation. 

Moreover, the lack of rational thought is also evinced through the age restrictions. Though a married Indian female can seek surrogacy procedure till the age of 50 years, but if the same woman is divorced or widowed then the age limit lowers down to 45 years. 

Though the traditional family fabric may remain preserved through the aforesaid measures but the Legislature failed to account for the scorn of the Indian society. The lack of privacy under these measures by making the surrogacy a family affair condemns the intending parents/mother to be subjects of public social discourse. It further deprives the parents/mother of lending any protection to the surrogate child to reveal the truth when the child is mentally and emotionally prepared.

It is interesting that the Government refrains from criminalizing marital rape as it shall be an interference in the private lives of Indian families. Yet, the Government has no qualms in regulating the familial relations with imposition of penal measures in matters of parenthood.

‘Assist Yourself’ Procedure

The Legislature has adopted an idealistic approach wherein altruism has been given paramountcy over the practicalities of life. In the endeavour to impose an absolute ban on commercial surrogacy, the Legislature has prohibited the intending parents/mother from providing any financial assistance to the surrogate mother barring the insurance coverage for 36 months under Section 4(iii)(a)(III).

Similarly, under the ART Act, the scheme of the said Act does not permit for providing any remuneration to the donors. Although, the essential requirement for genetic relation of the surrogate child with the intending parents renders the applicability of the ART Act moot. The insistence to avoid any transactional relationship between intending parents and the third-party has led to ludicrous results such as requiring the surrogate mother to undergo nine months of arduous labour with a surviving child and husband to be taken care of, yet no compensation can be paid even towards as menial things such as groceries. 

Conclusion

The fervor against the commercial surrogacy and transactional practices pertaining to pregnancy has rendered the statutes impractical. The legislative impracticality is contrary to the pragmatic approach advocated for by the Law Commission in its 228th Report. 

The Legislature could have sought to regulate the practice of commercial surrogacy in order to prevent the exploitation of surrogate mothers and resolve the bureaucratic and legal hassle for the surrogate child. Unfortunately, the imposition of stringent measures upon the registered medical practitioners and the rigid provisions for ideal altruistic surrogacy has hampered the access to reproductive health care. The State has donned its paternal cloak and become the decision-maker for Indian families endowing approval wherever deemed fit. These legislative measures have resulting in dispossessing the LGBTQ+ community, live-in couples, single women and men for their right to family due to their lifestyle. 

Decades-long progress and judicial precedents favouring and upholding the reproductive autonomy of a woman have been displaced by these statutes. Additionally, in the K. Puttuswamy judgment, the Apex Court had recognized decisional autonomy and informational autonomy as important aspects of privacy and the need to respect the independent decision-making skills of an individual. Rather than respect the decision-making capacity of the populace, the State has robbed them of privacy, autonomy and the right to family. It is essential that a realistic and logical approach is adopted towards the regulation of ART and surrogacy procedures instead of an unfeasible, irrational and unviable blanket prohibitionary measure.