What Are The Legal Issues Related To Surrogacy In India?

Legal issues related to surrogacy in India are not only difficult to deal with but these legal issues may also raise many questions about the smooth execution of the process. Freshly introduced surrogacy laws, certain myths of surrogacy, and legal regulations related to surrogacy in India are something to consider before going with the surrogacy treatment.

Surrogacy is an arrangement where a woman agrees to get pregnant and give birth to a child for another woman or couple through Assisted Reproduction using IVF technique. People go for surrogacy procedures when conceiving is not possible naturally or there are too many risks and complications associated with the pregnancy of the intended mother or when a single parent wants to have their own baby. About 750 babies are born each year using gestational surrogacy treatment. Medical advancements in surrogacy and legal standings in this respect have brought the traditional concept of motherhood under debate. Two prime considerations of genetics (gender selection of baby boy and a baby girl) and legitimacy are the basis for the legally acceptable definition of a family. After December 2018, as per Indian surrogacy laws, it is now illegal for foreign intended parents to complete a surrogacy in India. This law was passed after almost two years of debate. The law only allows altruistic surrogacy for needy, infertile Indian couples who have a certificate of their infertility. It is an established fact that surrogacy has helped many childless couples to complete their families when conceiving becomes difficult to even when undergoing fertility treatments. Therefore such legal limitations would affect the course of treatment for even those who are genuinely affected with fertility and need surrogacy as the only option to add to their family.  


Most of the people are still of the opinion that surrogacy is not a practice to be banned and sealed. In most cases, surrogacy is a gift of life for both the surrogates and the intended parents. In cases where it is exploitative, the government should rather reign in with stronger and more effective regulation than banning it.


In this article, we will look at: 


  • When is surrogacy considered as the best treatment?
  • What are the criteria to be a surrogate mother?
  • What is the process of surrogacy treatment?
  • What is the new surrogacy law?
  • What are the legal issues related to surrogacy in India?
  • What are the myths related to surrogacy treatment?
  • What are the benefits of surrogacy treatment?


1. When is surrogacy considered as the best treatment?



These are cases when surrogacy is required and considered as the best treatment:

  • When there are medical problems with the uterus of the intended mother
  • When the intended mother has gone through a hysterectomy that removed the uterus
  • In case of risky or impossible pregnancy for the intended mother, such as severe heart disease
  • If the couple has tried but couldn't get pregnant with a variety of Assisted Reproduction Techniques (ART)such as In Vitro Fertilization (IVF)
  • Surrogacy is also the best treatment for people who do not consider adoption as an option. This can be possible because of their age or marital status
  • If a gay couple considers surrogacy as an option for them, then one of the partners will use his sperms to fertilize the surrogate's egg through artificial insemination. The surrogate mother then conceived through it and carries the baby and gives birth. The gay couple can also go for an egg donor, fertilize that donated egg, and then transfer the embryo in a gestational surrogate to carry until birth.


What are the criteria to be a surrogate mother?


There are some aspects that a surrogate needs to fulfill. The eligibility criteria that define the best surrogate requires the following:

  • A surrogate ought to be a youthful grown-up lady who is physically fit and solid
  • The surrogate should also be emotionally strong.
  • Surrogates ought to in a perfect world be in their mid-twenties to mid-thirties.
  • Her past conveyance ought to have been uncomplicated.
  • The gap between the two pregnancies should not be less than 2 years.
  • It is significant that the companion of the surrogate ought to have given consent for the surrogacy procedure.  


What is the process of surrogacy treatment?


Surrogacy is an emotionally and physically demanding process for a surrogate. However, the advantages of surrogacy often greatly outweigh the risks and challenges they encounter. It takes someone special to be a surrogate mother. One should fully research the process before committing to this life-changing journey.

Proper research and understanding of the surrogacy process are integral to learning more about the realities of surrogacy. Whether one is a prospective surrogate, an intended parent, or simply someone who is interested in the benefits of surrogacy, they should understand the whole process to know everything about it. One of the important things to consider when deciding whether to pursue surrogacy or not - is the reality of the legal processes including any problems that may arise.

Once the intended parents are sure that surrogacy is the best treatment for them and the search for the surrogate has also been completed. Now, it is time to start the medical process of surrogacy. The intended mother or egg donor is given medication to develop eggs and after that, she undergoes an egg retrieval procedure. Once the eggs are fertilized in the laboratory to create an embryo, the surrogate undergoes fertility treatments prior to the embryo transfer and during the pregnancy. After the confirmation of a healthy pregnancy and listening to the heartbeat of the baby, the surrogate starts receiving payments for base compensation and a monthly allowance. The surrogate mother also begins receiving prenatal care, which continues throughout the pregnancy.


There are mainly two types of surrogacy:

  1. Traditional Surrogacy
  2. Gestational or IVF Surrogacy


1. Traditional Surrogacy


In the traditional surrogacy process, natural or artificial insemination of the surrogate is required. The surrogate mother's egg is combined with the intended father’s or donor's sperm hence the surrogate mother is also the biological mother of the child. If the sperm of the intended father is used then only the child will be biologically related to the parents otherwise the intended parents will not be the biological parents of the child. This is the oldest form of surrogacy and also called as partial or genetic surrogacy. Now that modern technology is developed to create embryos outside the womb, so traditional surrogacy has become very rare. Traditional surrogacy is not legal in India.


2. Gestational Surrogacy


Gestational surrogacy is the only legal form of surrogacy in India. Here the surrogate mother is not biologically related to the baby. With the development of science, another woman can carry another woman’s egg with ease and is called as surrogate or carrier. Here the whole process is performed with the help of IVF treatment so gestational surrogacy treatment is also called IVF surrogacy. In gestational surrogacy, all the legal matters are solved with the third party called an agency.


Surrogacy Process in India


After the birth of the first test-tube baby in 1986 in India, various IVF clinics in the country were established. From the starting of modern surrogacy, India has been a popular destination for international intended parents. Foreigners considered India as the best treatment destination for surrogacy treatment. The main reason for this is the low cost and easy availability of surrogates. 

India is growing as the best surrogacy destination. However, the services offered by some of these clinics were not up to the mark. The reason for this was a lack of ART guidelines as well as legislation on ART, supervisory and regulatory bodies, no accreditation, and no control of Government. Therefore, the Indian Council of Medical Research (ICMR) developed a draft National Guidelines for Accreditation, Supervision, and Regulation of ART Clinics in India in 2002.  After passing this law, commercial surrogacy in India was made legal in 2002. In 2008 the Supreme Court of India in Manji's case has held that commercial surrogacy is permitted in India. This again increased the international confidence in going for surrogacy in India. 

Till 2015, people from anywhere in the world could fly to India, spend about $35,000 and have a baby of their own through surrogacy. The surrogacy industry was barely synchronizing that reports from human rights agencies started spreading how surrogates were being ill-treated. Amid allegations of exploitation of surrogate mothers, the Indian government gave out certain rules and regulations. In 2016 the Indian government passed new regulations on surrogacy treatment. According to that law, it became illegal for foreign intended parents to complete a surrogacy in India. 

In commercial surrogacy, the surrogate mother is paid a certain amount for carrying the baby in her womb for the intended parents. After giving birth to the child, she surrenders it to the couple and takes the required reimbursement for it. Commercial surrogacy is said to be the most successful way of reproducing one's own child when no other ART (Assisted Reproductive Technology) like IVF seems to fail yet the technology faced various challenges due to its moral and commercial validity being put to scrutiny.


What is the new surrogacy law?



The 2015 surrogacy ban was only the start of legislation regulating surrogacy. After almost two years in December 2018, an Indian surrogacy law was passed and the following changes were made:

  • Made commercial surrogacy illegal in India
  • Only altruistic surrogacy is allowed for the needy, infertile Indian couples
  • It is necessary for Indian parents to be married for five years and have a doctor’s certificate of their infertility
  • Women can become surrogates only for once, that too if they are a close relative of the intended parents, are married and have their own child/children
  • Homosexuals couples, single parents and live-in couples cannot go for surrogacy
  • These changes reflect a new era of surrogacy in India. Other countries like Nepal and Thailand have recently implemented surrogacy bans, as well.


What are the legal issues related to surrogacy in India?



If someone considers surrogacy as the best option, then they should first know in detail about all the legal issues related to surrogacy. Here we have listed certain legal concerns related to individual rights that need to be observed while opting for surrogacy treatment.


There are many factors to consider before pursuing surrogacy, and it is not always right for everyone. However, the intended parents and surrogates who choose surrogacy find that the positives far outweigh the negatives, and it is a rewarding experience that deeply enriches the lives of everyone it touches.


1. Equality: It is said that the most important right of a citizen is equality, which can be compromised during surrogacy. In surrogacy, the right to raise the child is reserved for the intended parents through a contract even before the procedure begins. So those who advocate that the surrogate needs to be given equal opportunity to raise the surrogate child should know that a contract is signed with consent and approval of a surrogate and her lawyer. Right to give birth is considered a basic essential human right. Surrogacy is considered the last option accessible for securing a kid by infertile couples. The use of surrogacy has been banned for different people like separated, widowed, single, same-sex couples, matured, debilitated who are intrigued to have a kid. However, a surrogate has the right to decide whether she wants to give birth to a child or not. If she does not find it right then there is no person or law who can force her for the same.


2. Exploitation: There have been cases where the surrogate mother is said to be at risk of sexual abuse, illegal sale of the ovum, non-payment of compensation etc.  Such allegations have posed threat to a technology that stands as a boon for couples that have severe infertility issues like women that cannot carry a pregnancy to term as it could prove to be fatal or simply impossible for them. However, a surrogate mother deserves to be treated in the best way possible and taught about the details of the procedures and their rights.


3. Right to Life: The connection of the surrogate mother with the baby is that she is providing a rental womb for the baby. After delivering the baby, she will have no privilege to keep the kid since she is neither the mother (where both ova and sperm are from two different people) nor the proprietor of the hereditary material. This should always be made clear before the agreement that after giving birth they will not have any right on the child just to prevent cases where a surrogate may be seen claiming the baby as hers. 


4. Citizenship of the Resulting Child: Many foreigners visited India for the purpose of having a child through surrogacy, in that the main issue was whether the child delivered by an Indian belonging to a foreign parent is eligible for Indian citizenship or not.


5. The Validity of Contracts: The laws relating to surrogacy are indistinguishable. Different countries have different laws with respect to the validity and enforceability of surrogacy contracts. Some countries do not consider these contracts legal while some others have their own respective laws for their regulation. In India, it is generally criticized that surrogacy contracts are opposed to public policy because they involve the use of the womb by a woman for conceiving a child to be handed over to the other party on payment of money. After the law passed in December 2018, commercial surrogacy is not legal in India. Indian childless couples can still go for surrogacy.


6. The Interest of the Child: The process of surrogacy involves the payment of money to the surrogate mother for delivering and handing over the child to the intended parents. Hence, to some, it is considered as equivalent to buying and selling a child. It is also argued that it would lead to the selection of sex and traits in a child, i.e. creation of designer babies. It is also observed that the process of surrogacy involving In-vitro Fertilization usually results in the birth of triplets or quadruplets. This may harm the interest of the child, as the intended parents may not be financially capable to look after such a number of children born without their wish. 


Is Banning Surrogacy Right?


Surrogacy is no child selling, no biological colonialism, no embryo transaction, nobody renting. It is a gift of life and the new law intends to deny it. Adoption sounds an easier option, but no one can deny an individual's natural right to have a biological child of their own. The government should do more sensible talk and approach the matter with maturity. Regulation, instead of banning, may empower Indian surrogates by giving them sufficient power to ask for better remuneration. Ban on commercial surrogacy may not protect the legitimate interests of surrogates but eradicate the entire system and possibilities as a whole. In a society of telling gender inequality, even altruistic surrogacy can place exploited and voiceless women at greater risks. This may be even worse now as commercial surrogacy has been ended by law. Banning a practice is the easiest thing to do, but it may not be the wisest thing always. The country should have rather spent their sufficient time on thinking about how to regulate commercial surrogacy and to empower Indian women.


What are the myths related to surrogacy treatment?


In addition to the legal aspects, there are many misconceptions among the people related to surrogacy that may also be a reason leading to ban this practice. One should clear their doubts before opting for this.


1. Myth: Surrogacy is only for the rich and wealthy people.

This myth exists because the cost of surrogacy is not clear to everyone. Surrogate mother's fees and expenses vary substantially depending on several factors. The cost of medical care and health insurance is also among the big factors to consider, as there are some insurance carriers that exclude surrogacy. There are some surrogates who have excellent health insurance that does not limit or exclude surrogacy. There are also some fertility centers that offer in-house financing, payment plans or cash discounts to assist their patients.


2. Myth: Most women go for surrogacy to save their figure or avoid pregnancy.

For a woman, surrogacy is a very emotional and expensive process to have a baby. They typically choose surrogacy after multiple failed attempts and methods to conceive and carry a baby herself. The decision to continue onto surrogacy is always the last option. There is no truth that a woman will go for surrogacy to keep her figure maintained. Most women who want to be a mother do not care about the temporary weight gain. Having a baby is the most important aspect of their lives and the number one priority. Surrogacy is about one woman helping another woman enjoy parenthood. It has nothing to do with the mom to be concerned with her physical appearance.


3. Myth: The surrogate may try to take on parental custody of the child.

Most fertility clinics request that both the intended parents and the surrogate undergo a psychological evaluation prior to entering into a surrogacy agreement. Working with a reproductive law attorney will also be able to guide them on the laws surrounding surrogacy and confirm if that particular state or country recognizes the intended parents for the child’s parentage. Although the surrogate nurtures the child throughout the pregnancy, surrogates are aware from the onset that she cannot parent or have legal parentage rights of the child.


4. Myth: The intended mother will have trouble bonding with the baby.

Bonding with the child after birth through surrogacy is something that many intended parents worry about. The bonding and affection begin after the child is born, not while in the womb. Once the child is born it is immediately handed over to the intended parents where that bond begins to form. The mother who nurtures and loves the child secures a forever bond. 


What are the benefits of surrogacy treatment?


If we have discussed the issues and problems related to surrogacy, then we should also give details about the benefits of the surrogacy process and why it is considered as an ultimate resort to intended parents. Surrogacy means something different to each person involved. For intended parents, it is the chance to complete their family and fulfill their dreams of parenthood. For surrogate mothers, it is a lifetime opportunity to give selflessly to another family who needs them.

For both parties, surrogacy is an extraordinary journey of love, care, and selflessness.


Benefits of Surrogacy for Intended Parents


Intended parents are those couples that have struggled for years with infertility and did not get a solution even after wasting so much money and time. They still don't lose hope and have a strong desire to complete their families. For these couples and individuals, surrogacy is the last and best option. Here we have listed a few surrogacy benefits that intended parents enjoy:

  • Surrogacy allows infertile couples, single people and homosexual couples to become parents when they may not be able to have children otherwise
  • Gestational surrogacy allows one or both parents to be biologically related to the child
  • Surrogacy gives intended parents the opportunity to have and raise their own child intended parents are involved throughout the journey of pregnancy. They are generally able to be present for many key milestones, from the embryo transfer to the birth of the baby
  • Surrogacy gives intended parents the opportunity to know and form a special bond with the surrogate mother and her family.
  • Intended parents may face fewer restrictions with surrogacy treatment than with adoption. Those who cannot go for adoption due to agency restrictions on factors like age can still choose surrogacy
  • Surrogate mothers have already carried other pregnancies which increases their chances of successfully carrying a surrogate pregnancy. This may make surrogacy more successful as compared with other fertility treatments for intended parents
  • Surrogacy gives intended parents peace of mind and control throughout the pregnancy than they usually have with fertility treatments or adoption.
  • Surrogacy is often the result of years of hard work for hopeful couples and individuals who have tried hard to complete their families.


Benefits of Surrogacy for Surrogate Mothers


The benefits of surrogacy for intended parents are clear that they get their child. These couples and individuals are finally able to complete their families, after years of trying and hoping for success. However, there are also benefits of surrogacy for women who help them achieve this goal. Each surrogacy is life-changing, and there is something to be gained from every journey.


Here are some of the main ways surrogacy can benefit these amazing selfless women and their families:


  • Surrogate mothers enjoy a deep sense of personal satisfaction and pride knowing they have helped another family in such an incredible way to complete their families
  • Surrogates are able to share their pregnancy journey with the intended parents and develop a strong bond throughout the process. Many surrogates develop long-lasting relationships with the families whom they are helping.
  • Surrogates are generally women who enjoy being pregnant to experience pregnancy again, even if their own families are complete.
  • Surrogates often enjoy a strong sense of community with other women who have been in their shoes
  • Surrogates involve their family members, friends, and other supportive people in their surrogacy journey. They are able to set a wonderful example of selflessness and generosity for those around them
  • The expanses of the surrogate mother are paid throughout the pregnancy, and she enjoys a variety of services throughout the process, including best healthcare and counseling services
  • Surrogacy can be a physically and emotionally demanding experience, and it takes a special, selfless person to be a surrogate for another family. However, most of the surrogates agree that seeing a completed family at the end of their journey is the best reward that makes it all worth it.


Impact of Surrogacy Ban


There is still a group of people who are not in favor of banning surrogacy in India. According to them, there was a need to regulate commercial surrogacy and not completely ban it. The bill will affect genuine childless couples who don't get support from their families to go for altruistic surrogacy. 

Surrogacy is about individuals and parenting of a child, so the law must focus on choosing the right surrogate with the help of relatives, friends or agencies. The Government needs to regulate this keeping in mind that the health of the surrogate mother should be given more importance and not restrict surrogacy based on whether it is a foreign single parent or homosexual couples.

Surrogacy is an expensive treatment. There may be many legal and ethical issues related to surrogacy, but nothing is more important than having one's own child for a parent. That is why despite many reasons; people still consider surrogacy as the best treatment. 



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