Age limit For Surrogacy

Context:

Recently, the Delhi High Court sought the Centre’s response within four weeks on a petition by a couple challenging the Surrogacy (Regulation) Act, 2021.

• The law allows only women aged between 23 and 50 to go for surrogacy.
• The couple, contended that such a restriction is against their right to procreation.
• The petition was filed by the couple after the State medical board refused 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.

Relevance:

GS 2-Issues Related to Women, Government Policies & Interventions, Issues Arising Out of Design & Implementation of Policies, Social Empowerment

GS4-Ethics

Dimensions of the Article:

1. About Surrogacy
2. Need of Surrogacy
3. About Surrogacy (Regulation) Act, 2021
4. Eligibility criteria for intending couple
5. Eligibility criteria for surrogate mother
6. Offences and penalties
7. Ethical concerns associated with surrogacy
8. Conclusion

About Surrogacy

There are two primary forms of surrogacy: traditional and gestational surrogacy.

Traditional surrogacy:

• Traditional surrogacy involves artificially impregnating the surrogate mother with the intended father’s sperm, making her both the genetic and gestational mother.
• In this method, the surrogate’s own eggs are used, resulting in a genetic connection to the child.

Gestational Surrogacy:

• On the other hand, gestational surrogacy entails implanting an embryo, created through in vitro fertilization, into the uterus of a surrogate mother who carries and gives birth to the baby. In gestational surrogacy, the surrogate is not genetically related to the child.
• The embryo is formed using genetic material from the intended parents or donors. The categorization of surrogacy as commercial or altruistic hinges on whether the surrogate receives financial compensation for her pregnancy.
• Only a handful of countries, like India and Ukraine, permit commercial surrogacy. India, due to its relatively low costs, has emerged as a popular destination for fertility tourism, attracting couples from around the world seeking assisted reproductive techniques.

Need of Surrogacy

• Globally, the incidence of infertility is on the rise, with the World Health Organization reporting that approximately 17.5% of the adult population, roughly one in six people worldwide, grapple with infertility.
• This underscores the urgency of advancing assisted reproductive techniques (ART), such as in vitro fertilization and surrogacy.
• Surrogacy is often seen as a potential remedy for infertility or an alternative to adoption, thus garnering considerable celebration for enabling individuals to achieve their dream of parenthood.
• Surrogacy can be seen as an extension of reproductive rights, providing a means for individuals and couples to have children when traditional methods are unattainable.
• It can be a lifeline for those grappling with infertility, same-sex couples, and individuals unable to carry a pregnancy for medical reasons.

About Surrogacy (Regulation) Act, 2021

The Act prohibits commercial surrogacy, but allows altruistic surrogacy. 

•  In altruistic surrogacy, the surrogate mother receives no monetary remuneration other than medical bills and insurance coverage during the pregnancy.
• Commercial surrogacy refers to surrogacy or associated treatments that are performed for a monetary gain or reward (in cash or kind) that exceeds the cost of basic medical care and insurance coverage.

Surrogacy is permitted when it is:

• For intending couples who suffer from proven infertility;
• Altruistic
• Not for commercial purposes
• Not for producing children for sale, prostitution or other forms of exploitation
• For any condition or disease specified through regulations.

Eligibility criteria for intending couple

• The intending couple should have a‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority.
• A certificate of essentiality will be issued upon fulfilment of the following conditions:
  • A certificate of proven infertility of one or both members of the intending couple from a District Medical Board;
  • An order of parentage and custody of the surrogate child passed by a Magistrate’s court; and
  • Insurance coverage for a period of 16 months covering postpartum delivery complications for the surrogate.
• The certificate of eligibility to the intending couple is issued upon fulfilment of the following conditions:
  • The couple being Indian citizens and married for at least five years;
  • Between 23 to 50 years old (wife) and 26 to 55 years old (husband);
  • They do not have any surviving child (biological, adopted or surrogate); this would not include a child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness;
  • Other conditions that may be specified by regulations.

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;
  • Possess a certificate of medical and psychological fitness for surrogacy.
• Further, the surrogate mother cannot provide her own gametes for surrogacy.

National and State Surrogacy Boards

The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively.

Functions of the NSB include, 

• Advising the central government on policy matters relating to surrogacy;
• Laying down the code of conduct of surrogacy clinics;
• Supervising the functioning of SSBs.

Parentage and abortion of surrogate child

• A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple. 
• An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.
• This authorisation must be compliant with the Medical Termination of Pregnancy Act, 1971.  
• Further, the surrogate mother will have an option to withdraw from surrogacy before the embryo is implanted in her womb.

Offences and penalties

• The offences under the Act include:
  • Undertaking or advertising commercial surrogacy;
  • Exploiting the surrogate mother;
  • Abandoning, exploiting or disowning a surrogate child; and
  • Selling or importing human embryo or gametes for surrogacy.
• The penalty for such offences is imprisonment up to 10 years and a fine up to 10 lakh rupees.

Ethical concerns associated with surrogacy

Exploitation:

• Critics contend that surrogacy may lead to the commodification of women’s bodies, particularly in commercial surrogacy arrangements where surrogates receive compensation.
• Concerns about exploitation, coercion, and unequal power dynamics between surrogates and intended parents are prevalent.
• Unfortunately, it is often women from disadvantaged socioeconomic backgrounds who bear the brunt of surrogacy arrangements.
• They may need to sacrifice their own lives to fulfill the desires of affluent couples. During the surrogacy period, they are often isolated from their own families to avoid societal stigma.
• There is frequently an exploitative relationship between fertility clinics and intermediaries who lure financially vulnerable women with promises of payment, most of which ultimately goes to these intermediaries.
• In the event of any health issues arising from the pregnancy, neither the hospital nor the intended parents tend to provide adequate care for these underprivileged women.

Psychological effects

• Carrying another person’s child can give rise to a host of psychological issues for the surrogate mother.
• Surrogacy can also have profound emotional and psychological effects on all parties involved, including the surrogate, intended parents, and potentially the child.
• The dynamics of parent-child relationships in surrogacy can be intricate, raising questions about genetic and gestational connections, as well as the emotional bond between the child and the surrogate.
• Surrogacy challenges traditional notions of family by involving multiple parties in the reproductive process.

Conclusion

Rather than regarding impoverished women as mere “breeding factories,” it is essential to explore alternative methods such as adoption or emerging technologies like artificial wombs to meet the parenting needs of prospective couples.

-Source: The Hindu