The practice of surrogacy is still surrounded by stigma and disinformation, and one of the primary reasons of this is the long-standing absence of legislative frameworks. In literal terms surrogacy means a formal legal agreement whereby a woman becomes pregnant and gives birth for another couple's kid with the goal of giving the child to them after birth and renouncing all parental rights.
Is
surrogacy legal in India?
Yes and no both. The legal
landscape around surrogacy in India has been complicated and dynamic, with
numerous legislative amendments intended to regulate the practice. Significant
progress was made in January 2022 with the passing of the Surrogacy
(Regulation) Bill, 2019.
India made a significant move in 2015 when it outlawed commercial surrogacy for foreigners. This action was motivated by concerns about the commercialization of the surrogacy procedure and the possible exploitation of surrogates.
Some
highlighted points of the bill states that:
·
The ban restricted surrogacy services to Indian
couples, and even for them, it mandated that surrogacy be altruistic, meaning
that the surrogate could not receive financial compensation beyond medical
expenses and insurance.
·
Any type of surrogacy that entails a business
transaction would be considered illegal. In this case, intended couples and
surrogates who meet specific requirements are eligible parties.
·
The only married Indian couples who can choose
to become parents through surrogacy are those between the ages of 23 and 50 who
do not currently have a living child or having special child(mentally retarded).
In addition, they will need to get an eligibility certificate from the District
Medical Board stating that they are not biologically capable of becoming
pregnant.
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·
In parallel, the only married women who qualify
to be surrogates are those who are between the ages of 25 and 35, are close
relatives of the intended couple, and have a child of their own. They will also
need to get a physical fitness certificate from the District Medical Board.
·
The Act further specifies that the surrogate
cannot get any financial compensation other than a 36 months insurance policy
and payment for any medical costs. Any infraction of this act will result in a
fine of Rs 10 Lakhs and a maximum sentence of 10 years in prison. Furthermore,
this Act prohibits the storage, sale, or import of human embryos or gametes for
surrogacy, and it mandates registration for all surrogacy clinics.
Altruistic surrogacy, as
envisioned by the bill, aimed to ensure that surrogacy arrangements were driven
by genuine altruistic motives rather than financial gain. This was seen as a
means to protect the interests of both the intended parents and the surrogate
mothers, creating a more ethical framework for surrogacy.
These regulatory measures had well-intentioned goals, but
there were many real-world repercussions and difficulties. In the lack of
explicit restrictions, concerns surfaced over the possibility for exploitation
and enforceability of altruistic surrogacy. Concerns were also expressed on how
these rules would affect India's flourishing surrogacy-related medical tourism
sector.
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It is important to remember
that regulations can change, and since the last update, the legal environment
in India around surrogacy may have changed. With the 2015 ban on commercial
surrogacy for foreigners and the ensuing Surrogacy (Regulation) Bill, 2019, the
surrogacy laws in India have experienced substantial changes. All of these changes were made with the
intention of resolving ethical issues and strengthening surrogacy regulations.
However, due to the field's continual advances and practical application, it is
necessary to regularly check for the most recent legal changes and professional
assistance.
Eligibility
for surrogacy
Eligibility for surrogacy can
vary based on the legal regulations of the country or region. In India, for
example, the Surrogacy (Regulation) Bill, 2019, proposed allowing altruistic surrogacy
for Indian couples who have been married for at least five years and are unable
to conceive a child. Additionally, they should have a proven medical condition
necessitating surrogacy.
It's
essential to note that laws and eligibility criteria can change, and they
differ from one jurisdiction to another. Individuals or couples considering
surrogacy should consult the latest legal information specific to their location
and seek guidance from medical and legal professionals to understand the
eligibility criteria and requirements applicable to them.
When
should a couple go for surrogacy?
The decision to pursue
surrogacy is a deeply personal one and is often influenced by various factors,
including medical, emotional, and financial considerations. Here are some
common scenarios in which individuals or couples might consider surrogacy:
1.
Medical
Issues:
a. Infertility:
When individuals or couples face infertility issues and other assisted
reproductive technologies (ART) have not been successful, surrogacy may be
considered.
b. Medical
Conditions: If a woman has a medical condition that makes pregnancy unsafe or
impossible, surrogacy can provide an alternative for having a biological child.
2. Repeated Pregnancy Loss:
Couples who have experienced
recurrent pregnancy loss or multiple failed IVF attempts may turn to surrogacy
to increase the chances of a successful pregnancy.
3.
Same-Sex
Couples and live in couples:
Single female, may choose
surrogacy as a way to have a biological child. In this case, partners are not
included in surrogacy process.
4.
Uterine
Issues:
Women with uterine problems,
such as congenital absence of the uterus or abnormalities that prevent a
healthy pregnancy, may opt for surrogacy.
5.
Medical
Risk to the Mother:
If carrying a pregnancy poses a
significant medical risk to the intended mother's health, surrogacy may be
recommended.
6.
Unsuccessful
Previous Attempts:
After several unsuccessful
attempts at conceiving through other methods, individuals or couples may turn
to surrogacy as a last resort.
It's essential that single females or couples thinking about surrogacy should consult reproductive endocrinologists, fertility specialists, and lawyers. They can offer the latest details on the psychological, legal, and medical facts of surrogacy, assisting people in making decisions that are well-informed for their particular situation.
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