Friends, while going through today’s newspaper one news item caught my eye. The news was about a court case in the Bombay High Court about SURROGACY, and after reading the news I started browsing the internet about the latest surrogacy laws in India. In reality, surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple, the intended parent(s). When money is paid to the surrogate for her services, it is taken as an act of commercialisation, Indian laws ban commercial surrogacy and make it a non-bailable and non-compoundable offence to undertake commercial surrogacy.
Now let us see the Indian laws on surrogacy:
1 Eligibility– the couple who wishes to have a child through surrogacy, has first to approach a government medical board, consisting of obstetricians, pediatricians, and other specialists. The couple should be between 25 to 50 years of age, they should not have a child, either naturally conceived, adopted, or born out of surrogacy. They should have all the medical reports confirming that they can not have a child through a natural biological process. The couple has to take the insurance policy for the surrogate mother to cover her medical needs from the date of embryo transfer till the delivery of the child. After this, the order has to come from a first-class judicial magistrate, so they can proceed with the surrogacy process.
2 Surrogate’s Eligibility– She has to be between 25 and 35 years of age and be married with a child of her own. She should be a first-time surrogate. The law also states that the surrogate and the couple would have to have their Aadhaar cards linked. It would help make the biometrics of persons in the arrangement traceable, thereby reducing the scope of malpractice.
3 As stated earlier commercial surrogacy is banned by Indian laws, which means
- No one can sell or buy human embryos and gametes (a mature sexual reproductive cell, such as a sperm or egg, that unites with another cell to form a new organism).
- No one can sell or buy the services of a surrogate.
- Furthermore, no payment, reward, benefit, fees, remuneration, or inducement can be offered to the surrogate, her dependents, or her representative.
- Also, the law has banned the export of embryos to other countries.
Some of the other points of the surrogacy law:
- The Indian marriage act recognizes only marriage between heterosexual individuals. Hence, gay couples can not employ surrogacy to have a child.
- The surrogate, once she has entered into the contract, can not refuse to carry the pregnancy to term. She can not terminate her pregnancy without permission from the appropriate authorities.
- The law says that the Embryo should be genetically related to a couple, either to the man or to the woman or both. Embryo donation is not allowed in surrogacy.
- The law grants a divorcee or a widow to offer her eggs for surrogacy, on the condition that she is between 35 and 45 years of age.
- If a couple from India utilizes the services of a surrogate outside the country, the child born of such an act will not be recognized as an Indian citizen.
- If the commissioning couple dies before child is born, the nominees of couple which has to mentioned in the contract would have to bear the responsibility of the newborn child. However, at a later point the nominees, if they so wish can give up the child for adoption or to an orphanage.
- The children so born can claim the right to know they were born of surrogacy when they turn 18. They can also exercise their right to trace the identity of the surrogate mother.
Above are the salient points regarding the surrogacy laws in the country.
Now coming to the news item. There is the case in the Bombay High Court, a couple married for almost a decade, has approached the HC to challenge a blanket ban on egg donors for the permission to use donor gametes. As the new notification issued by the Union Ministry of Health and Family disallows donor gametes for couples intending to undergo surrogacy and also disallows donor eggs for single women. Earlier laws allowed the embryo should be genetically linked to either the man or to the woman or both.
Challenging the validity of the notification, the couple’s petition said that, in certain cases persons may not be able to produce their eggs or gametes, keeping many out of the purview of surrogacy. In the petition by said couple, the intending mother is suffering from a rare medical condition which is genetic abnormalities, which may cause bursts of cancerous cells anywhere in the body. There is a high possibility of passing on the aforesaid rare medical condition to the fetus and hence want donor eggs. But, the law states that the donor of eggs should be between 35 to 45 years of age, and in this case, as per medical opinion the eggs of elderly women may not be suiting the surrogacy process.
The HC has issued a notice on this matter to the Central Government, State and National and State Assisted Reproductive Technology and Surrogacy Boards.
In my opinion, the new notifications issued by the health ministry has not taken into consideration these type of medical conditions faced by couples going for surrogacy. I hope there is an amendment in this notification to take care of such cases.
Waiting for your views on this blog.
Anil Malik
Mumbai, India
23rd August 2023