Surrogacy Act, 2021: A Critique
Authored by Raj Krishna* & Sagarika Swapnil**
In the year 2021, the Parliament enacted the Surrogacy (Regulation) Act with an aim to regulate surrogacy throughout the territory of India. It is pertinent to note that this law was introduced by the Parliament in order to protect the rights and integrity of the surrogate mother while also enabling women to fulfil their dream of becoming a mother, who is unable to conceive despite undergoing numerous reproductive treatments. However, the legislation enacted by the Parliament is problematic in many aspects, as it has left a lot of questions unanswered.
In the light of the above facts, the authors in this legislative comment have analyzed the Surrogacy (Regulation) Act, 2021. Post this, the authors have discussed about the loopholes in the current legislation. Lastly, the authors have come out with some suggestions which if implemented, will help in fulfilling the objectives of the legislation in a more efficient manner.
A petition has been filed before the Delhi High Court challenging the constitutionality of some of the provisions of the Surrogacy Act and the Assisted Reproductive Technology (ART) Act. The petitioners have contended before the High Court that the said legislation is discriminatory in nature because it prohibits single unmarried men of becoming a father by means of surrogacy. Furthermore, the legislation also prohibits commercial surrogacy, which in turn is depriving one of the petitioners of their right because they are unable to procure the consent from women who would meet the conditions of the eligibility of a surrogate mother.
As a result, in May 2022, a division bench of the Delhi High Court bench comprising of Justices Vipin Sanghi and Sachin Datta sought a response from the Union of India upon the petition challenging the constitutionality of some of the provisions of the Surrogacy Act and the Assisted Reproductive Technology (ART) Act.
Legislative History of Surrogacy (Regulation) Act, 2021
The Surrogacy (Regulation) Bill was first presented in the Lok Sabha on July 15, 2019, and it was then forwarded to a select committee. On February 5, 2020, the report was presented to the standing committee following a comprehensive amendment of the Bill. Later, the Bill was approved by both chambers of Parliament during the winter session of 2021. Post this the President gave his signature to it, and it became effective in January 2022.
Salient Features of Surrogacy (Regulation) Act, 2021
Surrogacy Act, 2021 prohibits commercial surrogacy. It permits only altruistic surrogacy (A form of surrogacy wherein no remuneration is paid to the surrogate mother other than expenses incurred because of medical expenditure or because of insurance coverage).
The Act directs that all known adverse effects and aftereffects of such operations pertaining to surrogacy must be disclosed to the surrogate mother. Additionally, written informed consent from the surrogate mother to undergo such procedures in a language she is comfortable with must also be obtained.
Lastly, the Act directs that for the purpose of registering surrogacy clinics under this Act, a registry to be known as the National Assisted Reproductive Technology and Surrogacy Registry shall be established.
Challenges To The Act
Only two groups of people are allowed to use these services according to the Act. The National Assisted Reproductive Technology and Surrogacy Board, which has been established under Section 17 of the Act, must certify the intended woman and the intending couple in accordance with Section 4(ii)(a) of the Act. No one else is permitted to use surrogacy services under this Act outside the aforementioned groups. This eliminates a portion of the population, such as unmarried women who want to become mothers but are unable to do so. The irony in this situation is that it maintains the traditional taboo against accepting motherhood before marriage despite the law's seeming embrace of modernity. Furthermore, the Act only permits a man and a woman alone who are lawfully married under Indian law to use surrogacy services, highlighting the gender bias that still exists in our society and preventing same-sex and non-binary couples from sharing in the joy of parenthood.
Conclusion and Suggestions
In India, commercial surrogacy became legal in 2002, however, this led to abuse of the surrogates, who were, among other things, pushed to live in unsanitary conditions due to a lack of effective legislation overseeing the commercialization of the procedure. However, the prohibition of commercial surrogacy is no good solution to it.
Therefore, commercial surrogacy must be legalized because it not only raises the standard of living for those who are economically vulnerable but also helps to prevent the use of illegal surrogacy that might occur if commercial surrogacy is completely outlawed rather than subject to regulation and control.
For many Indians, altruistic surrogacy—and that too for a narrow class of people—is less likely to prove to be a viable option. It disregards the social reality of the so-called "private" in our society. While recognizing altruistic surrogacy as an ART service, the State shouldn't limit it to families. Instead, if charity is the way to go, it might be wiser to broaden the SR Act's application to permit any healthy individual who is able and willing to conceive to do so for no financial compensation. Indians' reproductive options are significantly reduced by restrictions on autonomy tied to being ever married, between the ages of 25 and 35, or related to the intending couple or woman.
 Delhi High Court Seeks Centre's Response on Surrogacy Act Provisions, NDTV (Aug. 2, 2022, 7:30 p.m.), https://www.ndtv.com/india-news/delhi-high-court-surrogacy-act-art-act-delhi-high-court-seeks-centres-response-on-surrogacy-act-provisions-3014150  Id.  Suchitra Karthikeyan, Explained: The new laws relating to surrogacy and assisted reproduction, and related challenges, The Hindu (Aug. 3, 2022, 8:30 p.m.), https://www.thehindu.com/news/national/explained-surrogacy-assisted-reproduction-in-india-laws-offence-problems/article65443258.ece  Surrogacy (Regulation) Act, 2021, SCC Online (Aug 6, 2022, 8:00 p.m.), https://www.scconline.com/blog/post/2021/12/27/surrogacy-regulation-act-2021/  Surrogacy (Regulation) Act, 2021, s.6.  Surrogacy (Regulation) Act, 2021, s.15.  Diksha Tekriwal, Lacunae in the Surrogacy (Regulation) Act, 2021, The Leaflet (Aug. 4, 2022, 9:30 p.m.), https://theleaflet.in/lacunae-in-the-surrogacy-regulation-act-2021/#:~:text=The%202021%20Act%20bans%20commercial,insurance%20coverage%20or%20medical%20expenditure.  Id.  Varalika Dev, Reproductive Justice: Constitutional issues plaguing ART and surrogacy laws in India, The Leaflet (Aug 6, 2022, 4:15 p.m.), https://theleaflet.in/reproductive-justice-constitutional-issues-plaguing-art-and-surrogacy-laws-in-india/
* An LL.M. student at NLIU Bhopal. He can be contacted at firstname.lastname@example.org.
** Advocate at Patna High Court. She can be contacted at email@example.com.