Analysis of Surrogacy Regulations in India: Rules, Challenges and Future Changes

Abstract

The term surrogacy implies a condition wherein, a woman called a surrogate gives birth to a child for another couple or intended parents. The use of surrogacy to avail a child has become popular in today’s time, with increase in infertility rates among couples around the world, the wish to have a child at an older age and also homsexual couples need to opt for a child. With this increasing demand for surrogacy, several nations have laws that regulate surrogacy, according to the social norms that prevail in those countries and to avoid exploitation of surrogates. The paper below analyses the surrogacy regulations in India, the changes required and the future challenges. 

Introduction

The term surrogacy originates from the Latin word ‘Surrogatus’, which means a woman acting as a substitute for another woman. The surrogate is usually impregnated through In Vitro Fertilisation (IVF), using the eggs from surrogate or egg donor and sperm from a sperm donor, to create embryo. The embryo is implanted in the surrogate who carries it for 9 months and once the baby is born, it is handed over to the intended parents. The child is biologically considered to belong to the intended couple. Surrogacy is an option for women who cannot carry a child, for couples with medical conditions, for single women who wish to have a child and also for same sex couples. It’s not easy to avail surrogacy as it is bound by various government restrictions across the globe. Some countries allow commercial and altruistic surrogacies, the practice of commercial surrogacy is banned in many countries, especially the developed ones. 

Kanupriya alias Durga was born in 1978, through the process of IVF. This gave hope to use surrogacy as an Alternative Reproductive Technique (ART).  This was the beginning of ‘reproductive tourism’ in India. In 2002, commercial surrogacy was legalised, this is said to have made India, a supermarket for surrogacy, which attracted a large number of foreign clients due to the cheaper cost of surrogacy compared to foreign countries. There was no bill, law or legislation framed in this context to guide surrogacy.  This resulted in the rise of uncontrolled surrogacy in India. Cities like Anand in Gujarat became the cradle of surrogacy, with large surrogacy clinics set up across India. Certain guidelines issued by Indian Council for Medical Research (ICMR) but were not accurately codified. There was no clear mention of who can avail surrogacy, what are the conditions that define infertility, how many embryos can be inserted at one point or the maximum or minimum payments given to the surrogate. This led to a sharp rise in surrogacy in India. According to a Hindustan Times article titled ‘MOMS MARKET’ in 2012, the cost of surrogacy in the US was 65 lakhs while in India it cost 4 lakhs.  Packages were offered based on the number of embryo transfers, surrogates background and legal work. The CII ( Confederation of Indian Industry) Report of 2012 states that the surrogacy industry in India was worth 2 billion dollars. As India was established as a centre of surrogacy, due to lack of unframed laws, there was a rise in exploitation cases of surrogate mothers in the context of commercial surrogacy. The ART bill 2013 banned homosexual couples, live-in couples and foreign single individuals from availing surrogacy in India. 

In 2015 after careful consideration the government decided to ban commercial surrogacy and the The Surrogacy (Regulation) Bill, 2016 was drafted which allowed only altruistic surrogacy and gave a new definition of infertility. The Surrogacy (Regulation) Bill, 2019 which was an exact replica of the 2016 bill, was placed before the Parliament. In 2021, the President passed the bill and Surrogacy (Regulation) Act 2021, was enacted. 

On February 21,2024 amendments were made to the Surrogacy (Regulation) Rules, 2022. The paper analyses, whether banning commercial surrogacy altogether was a good call on the part of government, do the new amendments made in 2024 relaxes the surrogacy procedure further and critically analyse whether the restrictions on homosexual couples and single women to access surrogacy is correct in a country like India. 

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