The Delhi High Court has raised concerns about linking marital status with eligibility for surrogacy under the Surrogacy (Regulation) Act 2021.
A petitioner has contested Section 2(1)(s) of the Surrogacy Act, which restricts surrogacy access to Indian widows or female divorcees aged 35 to 45. The petitioner also questions the rule requiring a single woman (widow or divorcee) to use her eggs for surrogacy, which is medically inadvisable due to her age, leading her to seek a female gamete donor.
Surrogacy: An introduction
Surrogacy involves a woman (the surrogate) carrying and delivering a child for another person or couple (the intended parent/s). The surrogate, also known as a gestational carrier, conceives and gives birth to a child for the intended parent/s.
Altruistic Surrogacy: This type of surrogacy involves no financial compensation for the surrogate mother beyond medical expenses and insurance coverage during pregnancy.
Commercial Surrogacy: This form includes surrogacy for monetary gain exceeding basic medical expenses and insurance coverage.
The Surrogacy (Regulation) Act, 2021
According to this act, a widow or divorcee woman aged 35 to 45 or a legally married couple can opt for surrogacy if medically necessary. The couple must consist of a legally married Indian man aged 26-55 and a woman aged 25-50, with no previous biological, adopted, or surrogate child. The law prohibits commercial surrogacy, penalizing it with up to 10 years in jail and a fine of Rs 10 lakhs. Only altruistic surrogacy, where no money changes hands and the surrogate is genetically related to the child-seekers, is permitted.
Challenges
Exploitation Concerns: Banning commercial surrogacy shifts from rights-based to needs-based, potentially infringing on women’s autonomy and right to parenthood. The Act struggles to balance these interests.
Patriarchal Reinforcement: The law reinforces traditional patriarchal norms, undervaluing women’s economic contributions and impacting their reproductive rights under Article 21 of the constitution.
Emotional Complexities: Altruistic surrogacy involving a friend or relative as a surrogate may lead to emotional complexities for intending parents and the surrogate child, risking relationships during and after the surrogacy process.
Third-Party Involvement: Altruistic surrogacy lacks third-party involvement, hindering support for medical and other expenses during the process, unlike commercial surrogacy.
Exclusions from Surrogacy Services: Unmarried women, single men, live-in partners, and same-sex couples are excluded from availing surrogacy services, raising concerns of discrimination based on marital status, gender, and sexual orientation, denying them the right to build their chosen family.
Amendments
- Recent Changes by the Supreme Court In March 2023, a government notification amended the law to prohibit the use of donor gametes. It stipulated that “intending couples” must utilize their own gametes for surrogacy. (Gamete Donation in surrogacy is now legal)
- A petition was lodged in the Supreme Court challenging the amendment as a violation of a woman’s right to parenthood.
- The Court construed the stipulation for the child to be “genetically related” as pertaining to the husband. It underscored that the law allowing gestational surrogacy is “woman-centric,” indicating that the choice to have a surrogate child is grounded in the woman’s inability to conceive due to medical or congenital reasons.
- The Court specified that when Rule 14(a) of the Surrogacy Rules is invoked, which outlines medical or congenital conditions permitting a woman to opt for Gestational Surrogacy, the child must be linked to the intended couple, particularly the husband.
- Gestational surrogacy involves a scenario where an individual who did not contribute the egg used in conception carries a fetus during pregnancy and delivers a baby for another individual or couple. The Supreme Court halted the enforcement of Rule 7 of the Surrogacy (Regulation) Act, 2021, to enable women afflicted with Mayer-Rokitansky-Küster-Hauser (MRKH) Syndrome — a rare congenital disorder impacting the female reproductive system — to pursue surrogacy using a donor egg. Rule 7 of the Surrogacy Act prohibits the use of donor eggs for the procedure.
