Is Surrogacy Legal in India?

Yes, surrogacy is legal in India, but it is heavily regulated under the Surrogacy (Regulation) Act, 2021. The law permits altruistic surrogacy under strict conditions and prohibits commercial surrogacy to prevent exploitation and misuse. Only Indian citizens who meet specific eligibility criteria are allowed to opt for surrogacy.

Legal Framework for Surrogacy in India

The Surrogacy (Regulation) Act, 2021, governs surrogacy in India, establishing clear guidelines for its practice while addressing ethical, medical, and legal concerns.

1. Types of Surrogacy

1. Altruistic Surrogacy (Permitted):
   • The surrogate carries the child without any monetary compensation other than medical expenses and insurance.
   • This form of surrogacy is allowed under Indian law.
2. Commercial Surrogacy (Prohibited):
   • Commercial surrogacy, where the surrogate is paid beyond medical and insurance expenses, is strictly banned.
   • The prohibition aims to curb exploitation and unethical practices.

2. Eligibility Criteria for Surrogacy

1. For the Intended Couple:
   • Citizenship: Only Indian citizens can avail of surrogacy.
   • Marital Status: The couple must be legally married for at least five years.
   • Age:
     • The woman must be between 23 to 50 years.
     • The man must be between 26 to 55 years.
   • Medical Certificate: The couple must have a medical certificate proving infertility.
   • Biological Connection: At least one of the intended parents must contribute gametes (sperm or egg) for the surrogacy process.
2. For the Surrogate Mother:
   • Citizenship: Must be an Indian citizen.
   • Marital Status: Can be married or a widow/divorcee with at least one biological child.
   • Age: Must be between 25 to 35 years.
   • Relationship: Must be a close relative of the intending couple.
   • Consent: Must give free and informed consent.

3. Provisions of the Surrogacy Act

1. Certificate of Essentiality:
   • The intending couple must obtain a certificate from a medical board certifying their need for surrogacy due to infertility.
2. Certificate of Eligibility:
   • The surrogate mother must be certified as eligible by an appropriate authority.
3. Registration of Surrogacy Clinics:
   • Only registered clinics can perform surrogacy procedures, ensuring adherence to medical and legal standards.
4. Ban on Foreigners and NRIs:
   • Foreign nationals, NRIs, and OCI cardholders are prohibited from availing surrogacy in India.

4. Legal Safeguards

1. Rights of the Surrogate Mother:
   • The surrogate has the right to free and informed consent.
   • Medical expenses and insurance coverage for the surrogate are mandatory.
2. Parentage of the Child:
   • The intended parents are considered the legal parents of the child born through surrogacy.
3. Protection Against Exploitation:
   • The Act imposes strict penalties for engaging in commercial surrogacy or violating the law.

5. Penalties for Violations

• Engaging in Commercial Surrogacy:
  • Imprisonment up to 5 years and a fine up to ₹5 lakh.
• Operating Unregistered Clinics:
  • Imprisonment up to 3 years and a fine up to ₹5 lakh.

Challenges and Criticism of the Law

1. Exclusion of Single Parents and LGBTQ+ Individuals:
   • The Act allows surrogacy only for heterosexual married couples, excluding single individuals and LGBTQ+ communities.
2. Close Relative Clause:
   • The requirement that the surrogate mother must be a close relative can be restrictive and impractical for many couples.
3. Ban on Commercial Surrogacy:
   • Critics argue that banning commercial surrogacy eliminates an income source for women who willingly participate as surrogates.
4. Enforcement Issues:
   • Effective monitoring and enforcement of the Act remain a challenge, particularly in rural areas.

Recent Developments

1. Assisted Reproductive Technology (ART) Act, 2021:
   • The ART Act complements the Surrogacy Act by regulating fertility clinics and assisted reproductive technologies.
2. Judicial Scrutiny:
   • Courts have been approached to address ambiguities and challenges posed by the restrictive provisions of the law.

Conclusion

Surrogacy is legal in India under the Surrogacy (Regulation) Act, 2021, but it is limited to altruistic surrogacy for married Indian couples who meet strict eligibility criteria. While the law aims to prevent exploitation and ensure ethical practices, it has drawn criticism for its restrictive nature. Couples considering surrogacy must adhere to the legal requirements and work through authorized clinics to ensure compliance.