Image credit: Boom Live, "Mimi: Fact-Checking Kriti Sanon's Surrogacy Film"
Imagine a regular day in Mumbai. The streets are crowded with people, the sound of vendors screaming, and the scent of delicious street food all around. In the midst of this busy scene, a middle class couple steps into a small clinic. They look both hopeful and nervous.
Starting a family through surrogacy is not something many people in India choose right away. For this couple, it’s a decision made after much thought. Surrogacy is still not a common path for many, and they carry a mix of excitement and uncertainty as they walk through the clinic doors.
Their story shows how surrogacy (when someone carries a baby for another person) is changing in India. This change is happening because of new laws and the recognition of the difficulties women face during reproduction.
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Surrogacy in the Spotlight: Indian Movies That Get Real
One of the most effective ways to convey a concept or bring awareness to the public is through sources of entertainment, especially movies. The concept of surrogacy, as well, started becoming more popular with Indian movies like “Chori Chori Chupke Chupke”. But the concept of Surrogacy with its emotional and legal complexities majorly gained popularity with the Filmfare award winning film "Mimi" .
It offers a dramatic and heartfelt look into the world of surrogacy, capturing both the struggles and success of the process. Such movies not only entertain but also educate the public about the procedure or basics of surrogacy, making it a more relatable topic for many.
Surrogacy (Regulation) Act, 2021: An Overview
Purpose:
The Act aims to regulate surrogacy, ethical practices, and protect the rights of surrogate mothers, intended parents, and children born through surrogacy.
Key Definitions:
- Surrogacy: A practice where a woman (the surrogate) carries a pregnancy for another person or couple.
- Intended Parents: The individuals or couple who want to become the parents of the child born through surrogacy.
- Surrogate Mother: A woman who agrees to carry and deliver a child for the intended parents.
Eligibility Criteria:
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- Intended Parents: Must be Indian citizens, married for at least 5 years, and unable to conceive a child naturally due to medical reasons.
- Surrogate Mother: Must be between 25 and 35 years old, have at least one child of her own, and be in good health.
Legal Requirements:
- Agreement: The surrogate and the intended parents need to sign a legal agreement that clearly explains the rules and details of the surrogacy process.
- Medical and Psychological Assessment: Both the surrogate and the intended parents must go through medical check-ups and mental health evaluations.
Rights and Protection:
- The Act makes sure the surrogate mother’s health and welfare are protected throughout the pregnancy.
- Surrogate mothers have the right to receive fair payment for their medical costs and insurance.
Registration: Surrogacy clinics and agencies need to be officially registered under the law to work legally.
Child's Rights:
The child born through surrogacy will have the same rights as a biological child of the intended parents.
Penalties:
This Act represents a significant step towards making sure that surrogacy is conducted ethically, makes sure to set punishments for illegal procedures including for carrying out commercial surrogacy practices without permission and that all parties involved are protected under the law.
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Legal Parentage of the Child
The Act states that the intended couple becomes the legal parents of the child born through surrogacy. Once the baby is born, the surrogate mother gives up all her parental rights. This helps make it clear who the child's legal parents are and ensures the child is officially recognized as theirs.
Commercial vs. Altruistic Surrogacy
India's law clearly separates two types of surrogacy: Commercial and Altruistic.
- Commercial surrogacy: The surrogate mother is paid more than just her medical bills and insurance, but this is not allowed as it might exploit the surrogate.
- Altruistic surrogacy: Where the surrogate mother helps out of kindness without extra payment, is permitted. This kind of surrogacy encourages ethical practices and safeguards everyone involved.
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Recent Controversies in Surrogacy Regulation in India
Even though the rules around surrogacy in India are meant to be fair, there have been some problems. Here's a look at what's being debated:
- Challenges with Altruistic Surrogacy: The idea of altruistic surrogacy, where surrogates are not paid beyond medical expenses, has been criticised. People worry that even without direct payment, women from low income backgrounds might feel pressured to become surrogates due to financial needs.
- Impact on Surrogacy Agencies and Clinics: The new rules have made it harder for surrogacy agencies and clinics to operate. Some report a drop in surrogacy arrangements and find the rules too strict. There's concern that these challenges could drive surrogacy practices underground, making them less safe.
- Legal Confusion and Enforcement Issues: The Surrogacy Act, 2021, has been criticised for not being clear enough. There are worries about how well it deals with international surrogacy and the rights of foreign clients looking for surrogacy services in India. Some experts think the law needs to be improved to address these concerns.
- Ethical and Human Rights Concerns: People are still debating whether altruistic surrogacy protects surrogate mothers' rights and wellbeing. There are concerns about the quality of medical care, psychological support, and help after the pregnancy. Advocacy groups are asking for better support systems to make sure surrogates are cared for throughout the process.
- Socioeconomic Differences: The gap between rich and poor in India affects the surrogacy debate. Even though commercial surrogacy is banned to prevent exploitation, some worry that the economic differences between the intended parents and surrogates could lead to subtle forms of pressure. There is a call to adjust the laws to better address these imbalances.
- International Impact: The new laws have also affected India's reputation as a surrogacy destination. Foreign couples face difficulties due to the strict laws, and there are concerns about the legal issues that could arise because of these restrictions.
Emerging Legal Reforms in Surrogacy in India
As India updates its surrogacy laws, several changes are being suggested to address current issues:
- Improving Surrogate Rights and Support:
- Better Medical and Psychological Help: There are calls for mandatory counselling and full medical support for surrogates during and after pregnancy to ensure their wellbeing.
- Clearer Legal Protections: Proposals include clearer rules for post pregnancy support and compensation for health problems.
- Handling International Surrogacy:
- Better Regulation: Changes are being considered to better manage international surrogacy and solve legal and ethical issues for foreign couples.
- Global Cooperation: Increased international cooperation is suggested to establish practices and resolve cross border issues.
- Ensuring Compliance and Enforcement:
- Tighter Monitoring and Penalties: Proposals include keeping a closer watch on surrogacy agencies and clinics to make sure they follow the rules, and punishing them more severely if they break the rules, so that they do the right thing.
- Certification: Introducing certification for surrogacy clinics to ensure they meet legal and ethical standards.
- Addressing Economic Inequality:
- Fair Compensation: Changes are suggested to pay surrogate mothers the same amount, and making systems to help people who don't have much money, so that they are not taken advantage of.
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Enhancing Legal Clarity and Framework
Current discussions aim to clarify the rules about who is considered a legal parent, how custody is decided, and what laws should cover all aspects of surrogacy. Surrogacy cases often get a lot of attention, especially when they involve celebrities or complex legal issues. Here are some famous and landmark surrogacy cases that have made news around the world:
Elton John and David Furnish (2010)
British singer Elton John and his partner David Furnish had a baby boy, Zachary Jackson Levon Furnish John, born through a surrogate in California in December 2010. Their case brought up important issues about international surrogacy and same-sex parents, highlighting both legal and social aspects.
One of the most well known surrogacy cases in the U.S. involved Mary Beth Whitehead, who was a surrogate mother but refused to give up the baby she carried for the Sterns, a couple who had arranged the surrogacy. This case raised major legal and ethical questions about parental rights and surrogacy agreements, leading to legal changes in several states.
Baby Manji Yamada vs Union Of India & Anr
A Japanese couple, Dr. Ikufumi Yamada and his wife, went to India to have a baby with the help of a surrogate mother. They found a woman in Gujarat, India, who would carry their baby. But, the couple got divorced because of marital problems. The father wanted to take care of the baby girl, but Indian law does not allow a single father to adopt a girl. So, the Supreme Court judges, Justice Arijit Pasayat and Justice Mukundakan Sharma, decided that the baby girl's grandmother should take care of her. This case showed that India needs better laws to regulate surrogacy.
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In 2015, the Indian government introduced a bill to regulate commercial surrogacy and protect surrogate mothers' rights. The case also sparked a national debate on reproductive rights, privacy, and the need for better laws to govern surrogacy in India.
Jan Balaz (S) v. Anand Municipality & 6 (S) | Gujarat High Court
A German couple hired a woman named Marthaben Immanuel Khrishti in India to be a surrogate mother for their twins. The couple lived and worked in the UK, but the twins needed Indian passports to travel. However, the twins didn't have citizenship because the process was stuck in the courts, so the passport authorities wouldn't give them passports. Also, Germany didn't have laws about surrogacy. The Supreme Court didn't allow the twins to get passports, but they did give them a special permit to leave the country. The German authorities allowed the couple to adopt the twins and fight for their rights.
The Cost of Joy: Understanding Surrogacy Expenses in India
In India, the cost of surrogacy can vary widely depending on several factors such as the clinic, location, and specific requirements of the surrogacy arrangement. Here is a general breakdown of the costs involved:
- Surrogacy Clinics and Agencies
- Initial Consultation and Agency Fees: ₹50,000 to ₹2,00,000
- Agency Services: Includes matching with a surrogate, legal documentation, and coordination. This can range from ₹3,00,000 to ₹8,00,000.
- Medical Expenses
- PreSurrogacy Medical Screening: ₹1,00,000 to ₹2,00,000
- IVF and Embryo Transfer: ₹2,00,000 to ₹4,00,000 per cycle.
- Pregnancy and Delivery Costs: ₹2,00,000 to ₹5,00,000 for prenatal care (the medical care that a woman receives during her pregnancy. It includes regular check-ups, tests, and screenings to ensure that both the mother and the baby are healthy. Prenatal care can help detect and prevent potential health problems, and it can also provide important information and support to the expectant mother), delivery, and postnatal care (the medical care that a woman receives after giving birth. It includes check-ups, support, and treatment for any issues that may arise during the recovery period. Postnatal care is important for ensuring that the mother's body heals properly, and that she is able to care for her newborn. It can also help detect and prevent postpartum depression and other mental health issues)
- Surrogate Compensation
- Compensation for Surrogate: In altruistic surrogacy, this is generally limited to medical expenses and insurance, but additional support (e.g., maternity clothes, transportation) might be provided. The total amount can range from ₹2,00,000 to ₹5,00,000.
- Legal Fees
- Legal Documentation and Agreements: ₹1,00,000 to ₹3,00,000 for drafting and processing legal agreements related to surrogacy.
- Miscellaneous Costs
- Travel and Accommodation for Intended Parents (if applicable): ₹1,00,000 to ₹2,00,000.
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Overall Cost
The total cost for a surrogacy arrangement in India can range from approximately ₹10,00,000 to ₹30,00,000. This range is influenced by factors such as the quality of the clinic, the complexity of the surrogacy process, and the specific needs of the intended parents.
It is important for prospective parents to consult with surrogacy agencies and clinics to get detailed and updated cost estimates depending on their situation.
Recent Developments
- The government has changed an old rule to help women who have babies through surrogacy. Now, women who are government employees can take 180 days of maternity leave if they have a baby through surrogacy. This is the same amount of time they would get if they had the baby themselves.
- The government has also said that the "commissioning mother" (the woman who is going to take care of the baby) can take time off to care for the baby, and the "commissioning father" (the man who is going to take care of the baby) can take 15 days off to help. Before, there were no rules about taking time off for surrogacy, so this is a big change. The government has also clarified what it means by "surrogate mother" and "commissioning father" to make things clearer.
- The government has changed the surrogacy rules for 2022. Now, married couples can use a donor's egg or sperm if one of them has a serious medical condition that prevents them from having a baby naturally. To do this, the couple needs to get a certificate from the District Medical Board. This certificate must confirm that one of the partners has a medical condition that requires the use of a donor's egg or sperm. Only after getting this certificate can the couple use a donor's egg or sperm for surrogacy.
Conclusion
India has been working to create rules for surrogacy that are fair and ethical. The Surrogacy (Regulation) Bill, 2019, is an important step in the right direction. As the laws change, it's important to keep talking and making adjustments to deal with new problems that come up, so that everyone involved is treated fairly and with respect.
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Frequently Asked Questions (FAQs)
1. What is the Surrogacy (Regulation) Bill, 2019?
The Surrogacy (Regulation) Bill, 2019, is an important law in India designed to set rules for how surrogacy should be done. The bill's goal is to make sure that surrogacy is done in a fair and ethical way.
2. Who is eligible for surrogacy in India?
Under the Surrogacy (Regulation) Bill, 2019, both the intending couple and the surrogate mother must meet certain conditions. The intending couple must be married for at least five years, be Indian citizens, and have no children of their own. The surrogate mother must be a close relative of the intending couple, married, and have at least one child of her own.
3. What are the rights of the surrogate mother in India?
The bill lays down several rights for surrogate mothers, including the right to withdraw from the arrangement at any time before embryo implantation, the right to receive medical care and insurance throughout the pregnancy and postpartum period, and the right to compensation for medical expenses and insurance.
4. Can foreign couples opt for surrogacy in India?
Yes, foreign couples can opt for surrogacy in India, but they face difficulties due to the strict laws. There are concerns about the legal issues that could arise because of these restrictions.
5. What are the recent developments in surrogacy rules in India?
The government has changed an old rule to help women who have babies through surrogacy. Now, women who are government employees can take 180 days of maternity leave if they have a baby through surrogacy. The government has also clarified what it means by "surrogate mother" and "commissioning father" to make things clearer.
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References
- Recent development in the Surrogacy Rules in India
- On Surrogacy, Indian Law Goes A Step Further — But Not Far Enough
- Centre Allows Six Months Maternity Leave For Staff In Case Of Surrogacy
- Surrogacy In India: Landmark Judgements
- Surrogacy Rules Changed, Couples With Medical Condition Can Use Donor Gametes
- A Womb of One's Own: Privacy and Reproductive Rights: EPW.In Engage
Written by Seersha Chaudhuri
Driven legal professional with a BA LLB and a knack for writing and media reporting. Previously, I’ve crafted legal documents and managed court proceedings at Terkiana PC, focusing on immigration law. I’m also brushing up on my Spanish with Duolingo—learning a new language has never been this fun! Eager to blend my expertise in legal research with my passion for global policy and creative writing. Apart from being a professional, I am a full time lover of fish, dystopian fiction and Brooklyn 99.
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Further Reading
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