Surrogacy

Recently, a petition was filed before Delhi High Court, challenging the exclusion of a single man and a woman having a child from surrogacy and demanding commercial surrogacy’s decriminalisation.

The Petitioner argued that the personal decision of a single person about the birth of a baby through surrogacy,a is a facet of the right to privacy guaranteed under Article 21 of the Constitution. Thus, the right of privacy of every citizen or person to be free from unwarranted governmental intrusion into matters fundamentally affecting a decision to bear or beget a child through surrogacy cannot be taken away.

What is Surrogacy?

About:

• Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s).
• A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries and gives birth to a child for another person or couple (intended parent/s).

Altruistic surrogacy:

• It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.

Commercial surrogacy:

• It includes surrogacy or related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Surrogacy (Regulation) Act, 2021

Provisions:

• Under the Surrogacy (Regulation) Act, 2021, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.
• It also bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs.
• The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child.

Challenges:

The exploitation of the Surrogate and the Child:

• One could argue that the state must stop the exploitation of poor women under surrogacy and protect the child’s right to be born. However, the current Act fails to balance these two interests.

Denies Legitimate income to Surrogates:

• Banning commercial surrogacy also denies a legitimate source of income of the surrogates, further limiting the number of women willingly to surrogate.
• Overall, this step indirectly denies children to the couples choosing to embrace parenthood.

Emotional Complications:

• In altruistic surrogacy, a friend or relative as a surrogate mother may lead to emotional complications not only for the intending parents but also for the surrogate child as there is great deal of risking the relationship in the course of surrogacy period and post birth.
• Altruistic surrogacy also limits the option of the intending couple in choosing a surrogate mother as very limited relatives will be ready to undergo the process.