Amendment in Surrogacy Rules

Amendment in Surrogacy Rules

GS-2: Social Justice

(UPSC/State PSC)

Important for preliminary exam:

About Surrogacy, Surrogacy, Surrogacy (Regulation) Rules-2021.

Important for Main Exam:

Surrogacy, norms set by the government for surrogacy, Benefits/impact of amendments in surrogacy, Challenges, Way forward, Conclusion.

26/02/2024

Why in news:

Recently, the Government of India has made significant amendments to the Surrogacy (Regulation) Rules, 2022, addressing the concerns and complexities associated with surrogacy processes.

​ Why the Surrogacy Rules were amended:

  • In fact, last year, the amendment made by the government in surrogacy rules in 2023 was challenged in the Supreme Court by a woman suffering from Mayer-Rokitansky-Küster-Hauser syndrome on the grounds that she wanted a child, but as per medical board records, she is unable to produce her eggs due to the absence of ovaries or uterus.
  • Apart from this, after the Supreme Court raised questions, the Central Government has made important amendments in the rules of surrogacy. Under this, a provision has been made that if the couple is suffering from any medical problem then the donor will be able to give egg or sperm to the couple. Whereas the earlier rule stated that a couple wishing to have a child through surrogacy should have eggs and sperm.
  • Notably, Mayer-Rokitansky-Küster-Hauser (MRKH) syndrome is a rare congenital disorder that affects egg production and can cause infertility.

Government laid down criteria for Surrogacy:

  • Widow or divorced woman within the specified age group has been given the right to adopt a child under surrogacy.
  • According to surrogacy law in India, unmarried girls cannot become mothers through surrogacy.
  • In India, only married couples can become parents through surrogacy. According to this, widows, divorced women, or LGBTQIA+ couples are not eligible for surrogacy.
  • According to surrogacy law in India, no foreign national can become a mother through surrogacy. The Indian government believes that surrogacy can be misused by foreigners, especially if it is allowed commercially. However, Persons of Indian Origin (PIO) who are married and living abroad are eligible for surrogacy.
  • Any woman can become a surrogate mother only once. Only a woman who is already married and has children can become a surrogacy mother. Apart from this, she should not take any drug and should be medically fit.

Benefits/Impacts of amendment in surrogacy rules:

  • This may help in preventing misuse of surrogacy.
  • It will become easier to protect the rights of the surrogate mother.
  • With this the rights of the child will be protected by the government.
  • These new rules will provide relief to couples struggling with the problem of infertility. However, this is only for people who do not have a uterus, have a damaged uterus, or have a thin uterine lining.

Rules of Surrogacy in India:

Surrogacy (Regulation) Rules, 2021:

  • This rule permits an individual or couple to adopt surrogacy who meet the medical criteria.
  • This rule permits only widows or divorced women aged 35 to 45 years, as well as legally married couples to adopt surrogacy.
  • This rule strictly bans commercial surrogacy, with severe penalties such as imprisonment of up to 10 years and fine of up to Rs 10 lakh.
  • This rule permits surrogacy to interested couples who are suffering from proven infertility and want to have a child.
  • Under this rule, a child born through surrogacy process is considered to be the biological child of the intended couple or the intended woman.
  • This rule bans abortion.

Eligibility Criteria for Surrogate Mother:

  • A woman who is a close relative of the intending couple or someone who is willing to undertake surrogacy under prescribed standards.
  • A married woman with a child of her own.
  • The age of the surrogate woman must be between 25 to 35 years.
  • Women can use surrogacy only once in their lifetime.
  • There should be a certificate of medical and psychological fitness for surrogacy.
  • The surrogate mother cannot provide her gametes for surrogacy.

What is surrogacy:

  • In simple words, raising your child in the womb of a woman other than your wife is called surrogacy.
  • Couples who want to become parents but face difficulty in having children, adopt surrogacy.
  • There are mainly two types of surrogacy, the first being traditional surrogacy and the second being gestational surrogacy.

Traditional Surrogacy:

  • In traditional surrogacy, the sperm of the donor or father is mixed with the egg of the surrogate mother. In this entire process, the biological mother of the child is the surrogate mother. However, once the child is born, its official parents are the couple who have opted for surrogacy.

Gestational Surrogacy:

  • In gestational surrogacy, the work of mixing the sperm and egg of the parents and placing them in the womb of the surrogate mother is done. In this process, the surrogate mother only works to give birth to the child. In this type of surrogacy, the surrogate mother is not genetically related to the child, but the woman doing the surrogacy is considered to be the mother of the child.

About the process of surrogacy:

  • Physical Checkup: Eligibility test of the intending couple and surrogate mother is done by the ART clinic under which all necessary checkups are done.
  • Consent Form: A consent form is signed by all parties (the intending couple, the surrogate mother, and the ART clinic).
  • Conception: A surrogate mother is conceived through techniques such as IVF or IUI.
  • Pregnancy and delivery: The surrogate mother completes the pregnancy and gives birth to the child under the guidelines of the ART clinic.
  • Birth Certificate: Finally, the birth certificate of the child is issued in the name of the intending couple.

Challenges of Surrogacy:

  • Ignorance: A surrogate mother is largely unaware of the existing legal or medical procedures and the risks involved in the procedure.
  • No legal recognition: Perhaps the most terrible disadvantage is that surrogate mothers in India are not legally recognized as "workers" because they do not sell mental or physical labor in the traditional sense of the word. As a result, they have no legal rights.
  • No international recognition: There are no internationally recognized laws governing surrogacy, so many parents and children may be unsafe – or even stateless.
  • Profit-making profession: In India, surrogacy is a $2.3 billion industry, allowing practitioners to earn huge profits, without any rules and regulations governing their practice.
  • Threat to life: Surrogacy endangers the lives of poor women, who rent their wombs to surrogate couples to earn a living, due to repeated pregnancies.
  • Exploitation of fundamental rights: This practice destroys the fundamental rights of the surrogate mother. While surrogate mothers receive a small amount, doctors and other professionals make huge profits.
  • Injustice: Although the surrogate mother could not refuse to give up the child, the intended parents had the right to refuse to give up the child.

Way forward:

  • Surrogacy comes under the reproductive choice of women and is included as a fundamental right within the ambit of Article 21 of the Indian Constitution.
  • If serious issues arise, amendments may have to be resorted to to resolve complaints and ensure accessibility for all categories of parents.
  • Instead of penalizing surrogacy, the person providing the womb for surrogacy should be protected with a contract ensuring proper insurance and medical check-ups.
  • Issues like middlemen have to be handled strictly, even while keeping in mind the sensitivities of the people.

Conclusion:

The amendment to the Surrogacy (Regulation) Rules, 2022, made by the central government on February 21, 2024, allows married couples to use donor eggs or sperm for surrogacy. A move that provided a huge relief to people with medical complications. There is a strict law in India to ensure that it is not misused.

Source: The Hindu

Mains Question:

What are the criteria set by the government for surrogacy? Discuss the way forward to address the challenges related to surrogacy.