Surrogacy Law faces challenge in Court

A person has approached the Delhi High Court to question why marital status, age or gender should be the criteria for prohibiting someone from commissioning a surrogacy.

Why in news?

Under the Surrogacy (Regulation) Act, 2021 a married couple can opt for surrogacy only on medical grounds.

The petitioner have challenged in the court the surrogacy law and the Assisted Reproductive Technology (Regulation) Act, 2021 which provides a regulatory framework for surrogacy.

Issues raised by the petition

Currently, the laws does not allow single men to have child through surrogacy.

Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.

Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.

Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.

The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method, their petition said.

Basis of the Petition

The personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution.

Thus, the right to privacy of every citizen or person affecting a decision to bear or beget a child through surrogacy cannot be taken away.

Distinct features of the Surrogacy (Regulation) Act, 2021

Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.

Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.

Purposes for which surrogacy is permitted: Surrogacy is permitted when it is: (i) for intending couples who suffer from proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution or other forms of exploitation; and (v) for any condition or disease specified through regulations.

Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

Eligibility criteria for surrogate mother:

To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:

A close relative of the intending couple;

A married woman having a child of her own;

25 to 35 years old;

A surrogate only once in her lifetime; and

Possess a certificate of medical and psychological fitness for surrogacy.

Further, the surrogate mother cannot provide her own gametes for surrogacy.