INTRODUCTION

Parenthood is a dream of every married couple but many times, due to unfortunate situations, couples feel deprived of this feeling. Reasons can be many like- male infertility, recurrent pregnancy loss, heart or blood disorders, or many other health problems among women which affect the capability of their uterus to carry a baby in the womb. In such circumstances, surrogacy emerges out as an alternative way that helps many couples to fulfil their dreams which may not be otherwise biologically or physically possible for them.Through surrogacy, an unfortunate couple (the intended parents) can get their child delivered by another woman (the surrogate) who carries pregnancy for them.

This reproductive practice is regulated by The Surrogacy (Regulation) Act, 2021 in India but still there is a need to address this problem immediately because of the rising number of ethical and social concerns in society and regarding the reproductive rights of the concerned parties.

CURRENT SURROGACY LAWS IN INDIA

In the realm of infertility solutions, surrogacy serves as a significant beacon of hope for countless individuals globally. The process begins with choosing a right surrogacy partner and then completing all the further steps with transparency and in compliance with the particular laws and rules governing it.The Surrogacy laws were not in Indian legal system from the very beginning. Actually, India was a global hub for surrogacy because in other countries like USA it was very costly and India was having lax regulations. It was believed that surrogacy agreements can be covered under Indian Contract Act, 1872 due to the lack of specific legislation. But as there were a lot of conflicts regarding consideration and objective of the surrogacy agreements, a new surrogacy Regulation Bill was proposed by JP Nadda (Minister of Health and Family Welfare in Lok Sabha at that time) banning commercial surrogacy in India. However, the proposed bill was also not a perfect one because it was violating the golden triangle of Fundamental Rights as prescribed in the Indian Constitution. Further, one more bill was proposed in 2019 because of excessive exploitation of the surrogate mothers and babies. The bill stated that surrogacy will only be practiced if one or both the parents will be proven infertile. From then continuous changes have been made in the existing laws to improve the situation.

The enactment of new surrogacy law in India named as the Surrogacy (Regulation) Act, 2021 has marked a significant milestone in regulating the surrogacy industry.Various rules, regulations and restrictions have been imposed by law to ensure the betterment of all the parties involved. It is required that the intended parents must not be able to have their own biological child despite 5 years of unprotected sex and they also must not have any child from their previous marriages. To resolve the born child’s citizenship issue, the laws require intended parents to be Indian citizens only. Criteria have been set for surrogate mothers also who are allowed to act as surrogate only once during their lifetime. The best thing about Indian surrogacy law is that it allows only for Altruistic Surrogacy where the surrogate is not paid for her help except bearing her medical costs. While on the other hand, Commercial Surrogacy where surrogate is paid for her services is banned and strictly punishable. Since surrogacy is given a legal status in India, it is best tried to protect the rights of all.

ETHICAL CHALLENGES

Since this practice is closely tied to marriage, fertility and children (who are highly valued in the Indian families) it not only encounters legal challenges about their rights, but also include ethical, social and other concerns. Although it has been mentioned in Section 6 of the Surrogacy Act that no surrogacy procedures can be started without telling its side effects to the concerned surrogate mother and without having obtained a written consent in a language understood by her along with giving her an option to withdraw the consent before implantation of human embryo in her womb, there exists an equal possibility that such consent is obtained from force, coercion or under pressure raising ethical questions about her autonomy. Surrogate mothers, especially the economically disadvantaged section of women, undergo massive exploitation in this practice. No doubt that law has banned commercial surrogacy but at the ground level there are cases where financial helps are offered by the intended parents and due to financial vulnerability a woman asserts to become a surrogate mother. Not only the surrogate mothers face unethical behaviour but the child (who is a product of surrogacy) also becomes a victim of this exploitation as soon as he enters this world.

In many cases it is seen that after the birth of the child the intended parents refuse to accept the child due to any reason like birth defect, genetic defect, medical condition, or gender of the child. It destroys the life of both- the surrogate mother as well as the born baby. This practice highly treats the born child as a product rather than being a gift of God. Besides legal provisions, such children may be used for the purpose of sale, prostitution or any other abuse.

SOCIAL CHALLENGES

Though surrogacy has gained prominence in India over the years, it is still not able to get a social acceptance by the people. Society appears to be a little more traditional when it comes to the concept of surrogacy. If a couple go for this practice, they may feel embarrassing to disclose it to others because of the societal attitudes towards infertility. In a developing country like India, finding a conservative set of people is not difficult who want both mother and father to be genetically connected to the child in the same usual manner as it happens to be. Also, the Surrogacy (Regulation) Act, 2021 excludes single parents, LGBTQ+ community, and live-in partners from using surrogacy services. It raises the concerns about human rights and equality principles for them. They claim that if they are not able to have a child from this practice then why should others be allowed, declining to give it social acceptance in that way. Not only society but different religious groups also carry different notions about surrogacy. Among Hindu families, having a child is a blessing because they are the one who will carry forward the genes of the family and their ancestors. Since children are very important to them, they generally accept fertility treatments and surrogacy to grow families. Thus, Hinduism allows surrogacy but prefers that both the egg and the sperm come from the married couple who are looking forward for surrogacy and will be raising the child in future. However, among Muslims it is not acceptable because according to some Sunni scholar surrogacy confuse the nature and lineage of a family and is considered as going against God’s will. They prefer to trace the child’s origin by his or her original father and mother. Hence, surrogacy is legally and ethically unacceptable among them. Thus, every religion presents their own valid points to held surrogacy legal or illegal. No one can be compelled to follow a particular practice because the delicacy and sensitivity of the issue is combined with the norms, beliefs and interests of the people.

CONCLUSION

The Surrogacy (Regulation) Act, 2021 establishes a regulatory framework to protect the rights of all the involved parties and address the ethical concerns related to surrogacy in the country. The recent Amendments in February 2024 has allowed for using donor gametes for married couples if a partner is unable to produce gametes because of medical necessities. It recognizes the legitimacy of surrogacy as a form of reproduction. There is no doubt that balancing the surrogate’s autonomy with the rights of the intended parents and the well-being of the child is a delicate challenge in legal practice but still it is effectively addressed by the Indian laws. The continuous refinement in Indian surrogacy regulations demonstrates the nation’s unwavering commitment to protect all the parties. Although the current framework raises concerns about inclusivity, equality and human rights but it will be resolved soon because the Indian government is truly dedicated to promote ethical surrogacy practices which is commendable and has bolstered the country’s standing in the global surrogacy industry.

REFERENCES https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf

**The views and opinions expressed in this blog are solely those of the author.**