In Context
∙ The Delhi High Court sought the Union Government response on a petition by a couple challenging the Surrogacy (Regulation) Act, 2021.
About
∙ The couple approached the court after the State medical boardrefused to issue them the required certificate for the procedure on the ground that the woman had “crossed the upper age limit” under the Surrogacy (Regulation) Act, 2021.
∙ The law allows only women aged between 23 and 50 to go for surrogacy.
∙ The court asked the Central appellate authority to decide the couple’s appeal against the rejection in four weeks.
Surrogacy (Regulation) Act, 2021
∙ What is surrogacy?: The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth.
∙ It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease.
∙ Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation.
∙ Abortion: Abortion of such a fetus is allowed only with the consent of the surrogate mother and the authorities and must adhere to the provisions of the Medical Termination of Pregnancy Act.
∙ Eligibility and Conditions for Couples: A couple should procure certificates of eligibility and essentiality in order to have a child via surrogacy.
∙ The couple is deemed ‘eligible’ if they have been married for five years, the wife is aged between 23-50 years and the husband is between 26-55 years.
∙ The couple must not have any living child (biological, adopted or surrogate.)
∙ A child with mental or physical disabilities, or one suffering from a life-threatening disorder has been exempted from the above criterion.
∙ The couple can get an ‘essential’ certificate if suffering from proven infertility of either partner certified by a District Medical Board.
∙ They must also have insurance coverage for 16 months for the surrogate mother, covering any postpartum complications .
∙ Eligibilty to be a surrogate: A surrogate mother has to be a close relative of the couple, a married woman with a child of her own, aged between 25-35 years, who has been a surrogate only once in her life.
∙ She must also possess a certificate of medical and psychological fitness for surrogacy.
∙ Regulation: The Centre and State governments will constitute a National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively.
∙ This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications.
∙ Offences: Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc.
∙ These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.
∙ Importance : The Act expands access to reproductive options for individuals and couples who are unable to conceive or carry a pregnancy due to medical reasons.
∙ The Act promotes reproductive autonomy, protects the rights and well-being of all parties involved, and facilitates access to assisted reproduction for individuals and couples seeking to start or expand their families.
∙ Challenges : Being discriminatory and violative of reproductive autonomy and choice by denying access to ARTs to single persons and people in live-in and same-sex relationships.
∙ The petitions also oppose the ban on commercial surrogacy and some chose to engage in commercial surrogacy because other livelihood options such as domestic or garment factory work were more exploitative, and surrogacy provided them with enough remuneration to positively benefit their families
∙ Conclusion : There is a need to assess the Act through the framework of reproductive rights and justice while keeping in mind the concerns of stakeholders .
