The Surrogacy (Regulation) Act, 2021, and the Assisted Reproductive Technology (Regulation) Act, 2021, have significantly altered the legislative framework that governs surrogacy and assisted reproductive technology in India. These laws seek to control the complex and changing environment of reproductive rights, but they have also provoked heated controversy over several fundamental issues, including surrogate mothers’ rights, eligibility criteria for intended parents, and ethical concerns about commercial surrogacy.

Key Features of the Surrogacy (Regulation) Act, 2021

The Surrogacy (Regulation) Act, 2021 is primarily intended to govern altruistic surrogacy in India, outlawing commercial surrogacy altogether. Some of the major provisions of the Act include:

Altruistic Surrogacy Only: The Act prohibits commercial surrogacy and only allows altruistic surrogacy. This means that surrogate mothers cannot be compensated beyond reasonable medical expenditures and insurance coverage. The goal is to avoid exploitation, but it has sparked controversy over how it may limit women’s autonomy and choices.

Eligibility for Surrogacy: Only Indian married couples with documented infertility are eligible for surrogacy. The intended parents must be married for at least five years, and there is a provision for a medical certificate demonstrating infertility. This has prompted concerns about the exclusion of single parents, live-in partners, and LGBTQ+ couples.

Surrogate Mother Protection: The Act requires surrogate mothers to be married women between the ages of 25 and 35 who have at least one biological child. Furthermore, a woman can only act as a surrogate once in her life. These limits are designed to safeguard surrogate mothers from exploitation, but some believe that they limit a woman’s options.

The ART (Regulation) Act, 2021: A Framework for Assisted Reproductive Technology

The Assisted Reproductive Technology (Regulation) Act, 2021 complements the Surrogacy Act by establishing a regulatory framework for ART clinics and banks. Some key aspects of this law include:

Clinic and Bank Regulation: This Act requires ART clinics and gamete banks to be registered. This guarantees that they follow a common set of laws and regulations, which can assist assure excellent care and protect patients’ rights.

Ethical Guidelines: The Act outlaws the selling of embryos and requires donors to provide extensive documentation, aiming to reduce unethical behavior in the reproduction industry.

Eligibility for ART: Unlike the Surrogacy Act, the ART Act makes reproductive technologies available to a wider group of persons, including single individuals and international nationals. However, it is important to note that the ART Act and the Surrogacy Act must be read together, which means that access to surrogacy remains restricted.

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Ethical and Social Debates Surrounding the Laws

Rights of Surrogate Mothers: The most contentious issue is surrogate mothers’ rights. While the Surrogacy Act aims to avoid exploitation by prohibiting commercial surrogacy, some claim that the restriction may accidentally drive the practice underground, causing even greater harm. Furthermore, others view limiting a surrogate’s remuneration as restricting her rights over her body and choices.

Intending Parents and Exclusions: The surrogacy framework has been criticized for excluding single parents, LGBTQ+ people, and couples in live-in relationships. While the ART Act is more comprehensive in this way, the Surrogacy Act’s stringent requirements exclude some groups from the legal surrogacy framework.

Commercial surrogacy: Commercial surrogacy has been condemned for exploiting poor women, yet its complete prohibition has also been viewed as limiting women’s autonomy. Many believe that regulated commercial surrogacy, with surrogate mother protections, would have been a superior answer.

Ethical Concerns in ART: The ART Act raises serious questions concerning the ethics of reproductive technology, particularly the sale of embryos and gametes. While the Act outlaws unethical behavior, critics believe that more should be done to secure informed consent and protect the interests of donors and children conceived via ART.

Conclusion

The Surrogacy (Regulation) Act, 2021, and the ART (Regulation) Act, 2021, represent a substantial shift in India’s approach to surrogacy and reproductive technologies. While the rules seek to protect surrogate mothers’ rights and prevent exploitation, they have also generated important considerations regarding autonomy, inclusion, and ethical standards. As these rules continue to be contested and interpreted, it is apparent that the legal environment surrounding surrogacy and ART will remain a hot topic in India for the foreseeable future.

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