Lacunae in the Surrogacy (Regulation) Act, 2021

The Act suffers from several flaws, namely, lack of inclusiveness, exclusion of non-binary gender,  prohibition of commercial surrogacy, and  the vagueness of certain provisions.

AFTER years of struggle by activists, the Surrogacy (Regulation) Act, 2021 was enacted last year by  Parliament to introduce and regulate the process of surrogacy. The Act was made effective on January 25 after the notification in the Official Gazette by the Union Government. There have been Bills passed in India for regulating surrogacy to allow those women who cannot conceive even after various fertility procedures to fulfill their dream of motherhood, and at the same time safeguard the right and integrity of the surrogate mother.

The Act, though, leaves certain necessary questions unanswered, apart from various gaps which we will discuss below. I seek to highlight the need for the Act to become more inclusive and clear by making amendments wherever required to act in the best interests of the people. The primary criticisms against the Act are regarding who is allowed and not allowed to avail surrogacy services, the exclusion of non-binary gender, the prohibition of commercial surrogacy, the need to include traditional surrogacy, and the difficulty that medical practitioners might face because of the vagueness in the law.

Surrogacy as a practice might have become popular in India in the recent past, but its roots can be traced back to our mythological past. Lord Krishna’s brother, Balaram, who was also the seventh child of Devaki and Vasudeva, was transferred to the womb of Rohini, (Vasudeva’s first wife) to protect her from Devaki’s brother, Kansa. Herein, Rohini acted as a surrogate to the intended parents (Devaki and Vasudev). Thus, Indian mythology has looked at surrogacy as a way to create or protect families, and not a procedure to be frowned upon.

While the Surrogacy (Regulation) Act, 2021 is the first legislation in India that controls the surrogacy practices, societal resistance against the process of surrogacy still prevails, especially in cases where the woman in the intending couple does not have a healthy egg and needs an egg donor for the surrogacy. The Act has raised various concerns not only in the minds of couples looking for surrogacy as an option to embrace parenthood, but also in the minds of medical practitioners due to the gaps in it. The progressive legislation, which aims to make surrogacy available to people unable to have children, has failed in its very nature to be progressive by being exclusionary and vague in its language, opening it to much deliberation and misinterpretation.

The Act’s beneficiaries

The Act restricts the people who can avail these services to only two categories.

  1. An ‘intending couple’ – The Act defines ‘couple’ as an Indian man and woman above the age of 21 and 18 respectively, who are legally married, as per Section 2(h) of the Act. An ‘intending couple’ is defined in Section 2(r) of the Act as a couple who intend to become parents through surrogacy and there is medical evidence that necessitates gestational surrogacy. The married couple should be between the age of 23 to 50 for females and 26 to 55 for males.
  2. An ‘intending woman’ – An intending woman as defined in Section 2(s) of the Act is a ‘widow’ or a ‘divorcee’ who is between 35 to 45 years of age and intends to avail this service.

Herein, the intended woman as well as the intending couple needs a certification of recommendation as per Section 4(ii)(a) from the National Assisted Reproductive Technology and Surrogacy Board constituted under Section 17 of the Act. Apart from the above-mentioned categories, no other person shall be allowed to avail the surrogacy services under this Act.

This excludes a chunk of society like unmarried females who wish to experience motherhood and are unable to conceive. The irony here lies in the fact that despite this law ostensibly embracing modernity, it results in maintaining the orthodox taboo against embracing motherhood without marriage. An unmarried pregnant woman is not allowed to have an abortion under the Medical Termination of Pregnancy Act, 1971, which punishes them for having a pregnancy due to sexual relations by forcing them to have the child, while herein when an unmarried woman wants to have a child but is unable to bear, she is not allowed to avail surrogacy services.

A couple, according to the 2021 Act, is identified as a married ‘Indian man and woman’ of ages above 21 and 18, respectively, leaving behind any man and woman in a live-in relationship intending to avail these services. The Act promotes the institution of marriage by limiting the meaning of couple to the definition in Section 2(h). The Act also results in the exclusion of couples who might be unfit medically or dealing with chronic diseases that can result in the unborn baby being more prone to such diseases. Although Section 4(ii)(e) does allow surrogacy in conditions where the National Assisted Reproductive Technology and Surrogacy Board specifies a condition or a disease, the vagueness of the conditions or diseases under which it is allowed persists in the Act and is subject to the opinion of the Board.

Exclusion of LGBTQIA+ community

Showcasing the existing gender bias which prevails in our society, the Act exclusively allows a man and a woman alone, who are legally married under Indian laws, to avail of surrogacy services, thus prohibiting non-binary and same sex couples from experiencing the joy of parenthood. Although in the case of Navtej Singh Johar versus Union of India (2018), the criminalization of homosexuality under Section 377 of the Indian Penal Code was struck down by the Supreme Court, same sex marriages have not yet been legalized in India, restricting that portion of same sex couples from qualifying under section 2(h) of the Act. The section further stresses that a couple must constitute a man and a woman, limiting the right of availing surrogacy services only to a heterosexual married couple.

The need to give recognition to the LGBTQ community is a necessity to propagate equality in the society, which every citizen of India has right to due to the fundamental rights that are granted to them as per the Constitution of India. In the case of Baby Manji Yamada versus Union of India (2008), the Supreme Court, for the first time, had to deal with the question directly linked to surrogacy. The court therein recognized surrogacy as a medium of embracing parenthood, and accepted that the parent may be a single parent or a homosexual couple. The latter has been completely negated by the enforcement of the Act. Therefore, there is a need to give the status and the privilege of having kids not only to heterosexual couples, but also to homosexual couples and non-binary sections of the society.

Also read: The Surrogacy Bill, 2016: A step back for inclusivity

Prohibition of commercial surrogacy

Commercial surrogacy was made legal in India in 2002, but due to lack of proper legislation governing the commercialization of the process, it led to exploitation of the surrogates, who were, among other things, forced to live in unhygienic conditions. In 2009, the Law Commission of India realized the exploitation that was taking place in the form of unregulated surrogacy practices and identified the need to come up with regulations to safeguard the interests of people. Its 228th report mentions how a wife in the Indian setting is only respected if “she is mother of a child… [proving] her husband’s masculinity and sexual potency”. Due to poverty, surrogates in India were cheaply available, which would lead to their exploitation as laws regulating surrogacy were absent.

The 2021 Act bans commercial surrogacy and recognizes only altruistic surrogacy. Altruistic surrogacy is where there is no remuneration paid to the surrogate apart from the expenses that might be prescribed or incurred due to insurance coverage or medical expenditure. Meanwhile, commercial surrogacy occurs when apart from the medical expenses and other prescribed expenses and insurance coverage over the surrogate, her services are commercialized, and she is provided with “payment, reward, benefit, fees, remuneration or monetary incentive in cash or kind”.

The need to regulate the practice of surrogacy is essential keeping in mind the probable exploitation of the surrogates it might lead to. Nonetheless, regulation is different from banning commercial surrogacy altogether. Section 3(ii) prohibits commercial surrogacy post the commencement of the Act. Section 38(ii) of the Act makes the practice of commercial surrogacy a punishable offence with imprisonment of up to ten years and a fine up to ten lakh rupees. The person seeking commercial surrogacy is punishable with imprisonment up to five years and a fine up to five lakh rupees, and if found to be indulging in the same practice again, the imprisonment may extend to ten years while the fine may go up to ten lakh rupees.

In Baby Manji Yamada, the Supreme Court held the surrogacy contract to be valid, and despite the presence of discord between the intended parents, allowed the intended father, who was also the biological father, the custody of the child. Though later on, due to the absence of regulations, there have been instances where the citizenship of the child became a prominent question and the need to bring surrogacy laws started becoming more pertinent. In the case of Jan Balaz versus Anand Municipality & Ors. (2009), the Gujarat High Court decided to give the child in question an Indian passport seeing that the mother was of Indian nationality when Germany denied to recognize the parentage of the parents since surrogacy was illegal there; instead, a visa was issued by the German embassy provided the commissioning parents adopt the child in accordance with German laws.

Many countries have been going back and forth and have different perspectives over commercial surrogacy. Some states in the United States do recognize commercial surrogacy while in others, it is considered as illegal. In Britain, the first case of commercial surrogacy was of Re C (A Minor) (Wardship: Surrogacy) in 1985, where the courts accepted commercial surrogacy in the ‘best interests of the child’. The same phrase was later on used by the Supreme Court of New Jersey in the U.S. in 1988, but for a differing opinion where the Supreme Court held that ‘best interest of the child’ lay in it being with the commissioning parents, although it held surrogacy contracts against public policy.

When the questions of citizenship and apt remuneration to prevent any type of exploitation are brought in, the government should try and focus on regulating commercial surrogacy rather than banning it in its entirety. Laws governing commercial surrogacy can be brought in, which specifies the apt amount a surrogate is given for her services and only people of Indian citizenship can be allowed to avail these services to regulate the entire citizenship issue.

One of the basic problem can be seen in commercializing surrogacy is of the validity of the contract as it is a human who is the object of consideration. The question of applicability of Section 23 of the Indian Contract Act, 1872 must be discussed as the transaction could be seen as immoral. In the case of Johnson versus Calvert (1993), the California Supreme Court in the U.S. acknowledged and addressed the contractual question by saying that “surrogacy does not turn children into commodities despite the fact that they are effectively the subject of a contract.” The decision was taken keeping in mind the intention of the parties to the suit. Thus, while formulating a contract between the intending person and the surrogate, the clauses formulated must be so that they do not put any of the two parties at a disadvantaged position and are made keeping in mind the utmost interest of the unborn child. Section 4(iii)(b)(IV) already prohibits a woman from being a surrogate mother more than once; thus, commercial surrogacy cannot be used as a way of livelihood or misused in any way. Proper rules can be made available where a surrogate is registered on an online portal accessible to all registered surrogacy clinics so as to prevent her from acting as a surrogate more than once in her lifetime.

Legalizing commercial surrogacy would in fact prevent an illegal market of vulnerable surrogates being put in dangerous situations. Countries like IsraelSouth Africa and Russia provide models for implementing tight laws for State-governed commercial surrogacy services. Arguments raised about the dignity of a woman for getting paid in exchange of a baby has already been settled in Johnson versus Calvert, where the court recognized the financial difficulties which might have forced an individual to opt as a commercial surrogate. The court recognized that “[e]conomic necessity is a reality for many women who become surrogate mothers and this economic reason does not make the surrogacy arrangements indecent or undignified”. Australian academic S.R. Anleu has written how nothing can be as undignified and indecent as obsequious poverty, and when women undergoing commercial surrogacy were interviewed, it was highlighted how the 3,000 USD by them equated to their family income for four to five years; further, most surrogates’ husband were either unemployed or employed in the informal sector.

Thus, commercial surrogacy must be made legal as it not only helps in raising the living standards of the financially insecure section of society, but also helps to keep in check illegal means of surrogacy which might take place due to a complete ban of commercialization of surrogacy instead of regulation and control over the same.

Also read: The Surrogacy Bill 2019: A lost opportunity for a truly beneficial legislation

Need to include traditional surrogacy

Surrogacy is of two major types: traditional surrogacy and gestational surrogacy. Traditional surrogacy is where the surrogate mother is also the biological mother of the child, whereas in gestational surrogacy, the surrogate gets implantation of an embryo in her womb for the intending couple, but the child is not genetically related to her.

The 2021 Act only allows for gestational surrogacy as Section 4(iii)(b)(III) prohibits any woman from acting as a surrogate by providing her gametes. Section 8 of the Act provides for the surrogate child to be considered as the biological child of the intending couple or intending woman, as the case may be, and have the same rights and privileges as that provided to a natural child under the law that was in force at the time.

Traditional surrogacy is an option for single men, same-sex male couples, non-binary people, or intended mother(s) who are unable to produce eggs or healthy eggs. Traditional surrogacy has been taken into account by the Supreme Court of India in Baby Manji Yamada, wherein the court recognized that this “straight method” might be used by couples. Such surrogacy is helpful as it reduces the cost of the process. The number of medical procedures to undergo for the surrogate mother is also less as compared to that in gestational surrogacy. The need to find another egg donor in case the intending mother’s egg is unable to fertilize is not needed as the surrogate’s egg can be used itself. Further, since there is no need for the egg to be harvested with the sperm outside the womb; rather the sperm of the intended father (or donor, as the case maybe) is just artificially inseminated by the process of intrauterine insemination or intra cervical insemination, due to which the process becomes less expensive.

In traditional surrogacy, since there is a biological link between the surrogate mother and the child, such a procedure can be limited to the situations where the surrogate is a close relative or friend of the intending couple or the intending mother. The surrogate who is also the egg donor must relinquish her parental rights so that the intended couple can bring up the child together. Further, the non-biological intended parent may be asked to sign and complete the formalities of adoption for the child post the birth to enforce the parental rights of the intending parents.

Problems faced by medical practitioners

Along with the 2021 Act, the government has also passed the Assisted Reproductive Technology (Regulation) Act, 2021 to assist clinics and laboratories involved in reproductive technologies. Both the Acts together work towards reproductive processes to treat infertility.

Also read: Assisted Reproductive Technology (Regulation) Bill, 2021: An Explainer

The National Assisted Reproductive Technology and Surrogacy Board having not been formed yet, has led to a significant amount of vagueness in regards to who is allowed to avail the surrogacy procedure, considering that a certificate needs to be obtained from the board. Only the facilities that are registered under the 2021 Act can be involved in the process of surrogacy.

Further, there are many sperm donors who are already undergoing medical procedures which, due to this Act coming into existence, might not be legal anymore, leading to either the violation of law if the procedure is not stopped or else putting the life of the donor at risk, if stopped. This has put doctors in a dilemma as to whether to stop the process in accordance with the law or to continue it against the law to prevent the health hazards to the donor undergoing the process. Thus, to overcome this lacuna, there is an urgent need for transitional provisions which are currently absent.

Serious concerns

The 90 days’ period, from the commencement of the Act, that is allotted by the government for obtaining the certificate of registration for clinics to practice surrogacy process or get involved in assisted reproductive, requires a proper infrastructure for not only effective implementation but also to prevent any injustice to the stakeholders due to the provisions under the Act. An agency for providing surrogates can be formed under the Act for better and informed control over the surrogacy market and to prevent any exploitation of the surrogates.

There are inessential delays in the appointment of authorities which, in turn, is leading to a delay in the application of registration to the Board as well as for the application of certificates to avail the surrogacy services. The 2021 Act needs to become more inclusive of different sections of the society that have been left uncovered, and clarity over the appropriate authority is required for smooth, efficient, and hassle-free functioning.

The Parliament has taken a paternalistic view of the problem where, instead of eradicating the problems and exploitation faced due to the lack of regulations governing commercial surrogacy, it decided to make it illegal in its entirety and put restrictions on availing the surrogacy services on the pretext of the welfare and interest of the society. Commercial surrogacy is considered to be “renting of wombs’, ‘outsourced pregnancies’ or ‘baby farms’” (as per the Supreme Court in Baby Manji Yamada) since there is money involved, apart from the basic medical and insurance covering expenses; on the contrary, it seems to have been forgotten that the money provided to the surrogate is for her to improve her standard of living and acts as her livelihood for a while.

(Diksha Tekriwal is a third year B.B.A., LL.B. (Hons.) student at O.P. Jindal Global (Institution of Eminence Deemed to be University)

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