Is surrogacy legal in India, and what are the conditions? This is among the most asked questions among intended parents because surrogacy laws are constantly changing.
Previously, in India, commercial surrogacy was legal however, due to increased concerns regarding ethics, legal complexities, etc., a rigorous legal regime has been introduced, which currently controls the practice of surrogate motherhood in India by defining who wants to undergo this process, types of surrogacy, etc.
This blog will guide you about the surrogacy regulation in India, the key provisions of the "Surrogacy (Regulation) Act," the eligibility criteria for the procedures of surrogacy in India, penalties under the current applicable surrogacy law in India, and the things an intending parent must know regarding the regulation of surrogacy in the country in compliance with the "Surrogacy (Regulation) Act."
Introduction to Surrogacy Laws in India
Surrogacy laws in India have been formulated to control the growing practice of surrogacy, which was prevalent to a lesser extent.
Before its regulation, India emerged as a centre for business surrogacy, which led to a host of issues regarding the exploitation of women, the absence of proper medical regulations, and issues related to child rights.
To resolve these issues, the government in India came up with a separate law to guarantee the ethical and transparent practice and use of surrogacy for genuine medical conditions.
Which Law Governs Surrogacy in India?
Surrogacy in India is regulated by the Surrogacy Regulation Act, 2021. The Act came into effect after the presidential assent was received in December 2021.
The Act lays down legal rules for regulating surrogacy practices, establishing national and state boards, and defining the rights and responsibilities of all parties involved.
The intention of the law is the prevention of abuse of the practice, the protection of surrogate mothers, and the protection of children.
What Types of Surrogacy Are Legal in India?
Only Altruistic surrogacy is allowed in India. Altruistic in this context connotes that the surrogate mother does not receive any kind of compensation for carrying the pregnancy in her womb, except the medical costs incurred on her treatment and other pregnancy-related costs provided by law.
Commercial surrogacy, which includes the element of payment, fees, or any financial inducement to the surrogate mother or the intermediary, is completely prohibited. There is a clear distinction between legitimate expenditure and payment, and making a profit through the activity of surrogacy is an offence.
Who Is Eligible to Opt for Surrogacy Under Indian Law?
This clearly specifies the people legally allowed to opt for the option of surrogacy in India. Surrogacy is allowed in India in the event of a proven medical indication for it. Eligible are the following kinds of people:
An intended couple is a legally married Indian male-female couple who meet the stipulated age requirement and have the medical requirement to access surrogacy services.
An intended woman, who is an Indian widow or divorcee, of the right age.
The law only provides the service to Indian citizens, thus barring the practice of surrogacy as a lifestyle choice or convenience-based selection.
Eligibility Criteria for a Surrogate Mother
While it has been enacted, the Surrogacy Act has strict eligibility criteria in place for surrogate mothers to protect themselves. A surrogate mother has to:
- Be an ever-married woman with at least one child of her own
- Fall within the legally prescribed age bracket
- Be medically and psychologically fit
- Act only once in her lifetime as a surrogate
Not using her own eggs for surrogacy. These are meant to be conditions for the protection against health risks, emotional harm, and exploitation of surrogate mothers.
Legal Procedure for Surrogacy in India
Surrogacy in India is a structured legal process. The intended parents should obtain a certificate of medical necessity from the District Medical Board and a certificate of eligibility from the appropriate authority. There has to be a legal order regarding parentage and custody of the child from a competent court.
The law further requires that insurance coverage be provided to the surrogate mother for a specified period of time, for pregnancy-related complications and post-delivery complications. Surrogacy procedures cannot start unless all the clearances by the law are obtained
Rights of the Child Born Through Surrogacy
A child born through a valid surrogacy process is considered a legitimate biological child of the couple under the laws in India. The child will have all the rights and privileges a natural child is entitled to. The laws have strictly forbidden the relinquishment and/or abandonment of a surrogate child on grounds like illness and/or sex of the surrogate child
Registration and Role of Surrogacy Clinics
All surrogacy clinics across India are to be registered under the Surrogacy (Regulation) Act. Only registered surrogacy clinics are allowed to carry out surrogacy procedures. These surrogacy clinics are also expected to meet certain standards.
The authorities are entitled to inspect the clinics, suspend or cancel their registration, and take appropriate legal measures in the event of a violation.
Acts and Practices Prohibited Under Surrogacy Law
The law has clearly prohibited several practices, among them:
- Commercial Surrogacy of any kind
- Advertising or Promoting Surrogacy Services
- The use of Agents or Intermediaries
- Sale or purchase of embryos and/or gametes for surrogacy
- Sex selection as a requirement of surrogacy
- Exploitation of a surrogate mother or child
These prohibitions are intended to uphold ethical and transparent approaches to surrogate motherhood.
Penalties for Violating Surrogacy Law in India
Severe penalties have been provided for the infringement of this act, including imprisonment accompanied by hefty fines. For commercial surrogacy offenses, the law prescribes a jail sentence that can stretch up to a maximum of 10 years, accompanied by a hefty penalty. Significantly, the law has been categorized as cognizable, non-bailable, and non-compoundable for its infringement
Surrogacy Law for Foreign Nationals and NRIs
At present, the surrogacy option in India is mainly open to Indian citizens meeting the eligibility criteria. Foreigners and couples from different nations are not allowed to opt for the surrogacy option in India.
OCI and NRI couples should note that surrogacy laws in India currently restrict access primarily to Indian citizens. OCI and NRI eligibility depends on legal interpretation, documentation, and government approvals. Therefore, expert legal guidance is strongly recommended before planning surrogacy in India.
Conclusion
The Indian law on surrogacy is framed in such a manner that surrogacy is practiced with ethics, in a safe manner, and for legitimate medical reasons. Surrogacy (regulation) Act 2021 permits altruistic surrogacy with certain restrictions while completely prohibiting any kind of commercial practice.
Well-defined eligibility criteria, legal sanctions where approval is required, safeguarding of surrogate mothers, and stiffer legal actions in case of infringement comprise the backbone of the legal requirements and sanctions proposed.
For intended parents, knowledge of and compliance with the laws governing surrogacy is a must to clear any potential legal hurdles and to make their journey of surrogacy a success. Seeking guidance from an authorized surrogacy centre in this context is the only safe bet in this context in India.
Disclaimer: Surrogacy laws in India are subject to change and interpretation. This information is for general awareness and does not constitute legal advice.
Frequently Asked Questions (FAQs)
Q. Is surrogacy legal in India?
Ans. Yes, surrogacy is legal in India under the Surrogacy (Regulation) Act, 2021, but only altruistic surrogacy is permitted under strict conditions.
Q. Is commercial surrogacy allowed in India?
Ans. No, commercial surrogacy is completely prohibited in India. Any form of payment or financial benefit beyond medical expenses is illegal.
Q. Who can opt for surrogacy in India?
Ans. Legally married Indian couples with medical necessity and eligible Indian widows or divorcees can opt for surrogacy.
Q. Can OCI or NRI couples opt for surrogacy in India?
Ans. Surrogacy laws primarily allow Indian citizens. OCI and NRI eligibility depends on legal interpretation and approvals, and expert legal consultation is strongly advised.
Q. What is the punishment for illegal surrogacy in India?
Ans. Violations can attract imprisonment of up to 10 years along with heavy fines, as the offence is cognizable and non-bailable.
