Are 2024 New Surrogacy Laws Patient Friendly?

Fertility Dost is a 50,000 strong community of women & couples suffering from infertility. And we exactly know how it feels to be childless. To fulfil their parenthood dreams the couples hardly have few options like IVF treatment, adoption & surrogacy. Having said that, we would like to mention here that, the new surrogacy laws are confusing, problematic and made by policymakers who might have a very bird’s view idea of what infertility is. Let me prove it to you!

Objection With New Surrogacy Laws

The Fertility Dost community isn’t quite happy with the decision of the government on passing this Surrogacy Act because it only allows Altruistic Surrogacy that too with weird criteria. (read till the end to know everything about the new surrogacy law). The government has conveniently forgotten that a large number of infertility cases are seen in urban India. The urban population mostly lives in nuclear families, whereinto say the least relationships are not so good that a sister or sister-in-law will happily bear your child for you after her own 2 kids, hectic lifestyle and demanding job. Moreover, a sibling or cousin carrying a surrogate child is an alien option. Elderly people always get shocked on – “How can a sister carry a brother’s child?” or “How can a sister-in-law carry her brothers-in-law’s child?”

Infertility is a big social taboo, hence couples suffering from infertility are not comfortable discussing their issues openly with family or close relatives and our policymakers want them to convince and beg a family member to become their surrogate.

The rules for a surrogate mother are even more silly. A surrogate mother is not given any compensation other than the medical expenses & insurance during pregnancy. The government, again conveniently didn’t consider that a surrogate mother can also be a working woman who might have to take leave or a sabbatical due to pre or post-pregnancy complications. How can she not be compensated for this loss? Let’s not forget here that surrogacy was a bread earner for a lot of women who come from a low-income groups and became surrogates to run their families.

Let us remind our government that, not every Indian lives in a joint family or has a strong bond with family members & relatives who are willingly & selflessly giving away their 9 months to an infertile couple based on sheer compassion. We recommend that better reforms be made which is REALISTIC and is actually helping infertile couples to achieve their parenthood dreams.

Surrogacy Is A Need And Not Luxury Option

A reality check!

Couples suffering from infertility, mostly consider surrogacy as a last option. Initially, they try for natural conception, followed by many years of fertility treatments like failed IUI, failed IVF treatment and other failed attempts of fertility treatments. At last, they are left for Adoption & Surrogacy. Surrogacy for many is still the last hope to have a child with their own eggs & sperm.

Surrogacy is a luxury for movie stars & high society clubs but is a necessity for middle-class population. Let’s not make it an impossible option due to the unrealistic reforms.

What Can Surrogacy Law Learn From Adoption Laws?

When Adoption centres keep a close check on adoptive parents & children, similarly a surrogate child & his/her parents can also be kept under surveillance through a special legal committee formed by the government for the safety & well upbringing of the child.
Read more about Adoption Policy in India
We request our government to please don’t make such baseless rules and make the already complex life of infertile couple more COMPLEX.

What Can the Indian Government Do To Make Surrogacy A Win For All?

• Things that are in demand for example liquor shops or prostitution when banned, go underground making it more dangerous, illegal and unregulated. Similarly, surrogacy is in demand worldwide. We can’t just ban commercial surrogacy. Rather strong regulations can be made to stop the exploitation of young & uneducated women.
• Only government licenced surrogacy clinic should have commercial surrogacy permission
• A woman undergoing a surrogacy procedure should get free counselling about the entire procedure and risks involved.
• A surrogate mother should be aware of a number of embryos transferred.
• In case of a surrogate woman who is uneducated & poor but fulfils eligibility criteria for being a surrogate mother, should be under the guidance of government authorised NGOs who will help & regulate her 9 months pregnancy.
• A transparent compensation policy should be made between the intending couples & surrogate mothers.

We need a transparent, ethical and safe surrogacy law for the safety of surrogate mothers and well for intending couples.

What Women Of Our Community Have To Say

We put up a question in our community to ask real women suffering from infertility whether they agree or accept the new surrogacy Law? This is what they shared-

“No, I don’t agree… At least they should have kept in mind people who are in genuine need of surrogacy and have no other options left. No family members or relatives would agree to be a surrogate because of the mentality of the society we live in.”
–      Kamna from Mumbai

“Government should regulate the process of surrogacy, take it in her hands, analyse which couple is in genuine need and which is not. Payment to surrogates should be made open and transparent. Government should undertake surrogate homes”
–      Rhea from Bangalore

“Until we close the financial gap between citizens of the same country, there can be no real ethical safe business of surrogacy – carrying someone’s baby in your womb.”
–      Sheetal from Delhi

“Filling financial gap will take years as it is not a process to end in a day or two. It will take decades … But parenting cannot wait until then.”
–      Amreen from Meerut

“These so-called ‘Middle Men’ are the reasons for exploitation… Jab yeh khatam ho jaynge tab surrogates ka exploitation bhi khatm ho jayega. Government jab surrogacy ke process ko apne haat mai le legi tab situation will be much better”.
–      Parul from Gujrat 

“Allow a woman to accept to be a surrogate if she is of “similar” financial possibilities and status as the family who is requesting surrogacy. when there is a huge gap, money will definitely play a major role.”
–      Hina from Mumbai

“Even if it’s banned there will be many illegal ways to do it and it will lead to more exploitation. There should be a proper regulatory way to handle this rather than a complete ban. It will Also affect LGBTQ couple or single men who want to have a kid.”
–      Aparna from Mumbai

“Indian surrogacy regulations: Transparent, Ethical and Safe. That’s what the women need.”
–      Vaishnavi from Bangalore

“Not only the surrogate mothers are unaware, but they are also mostly struggling and lack of education allows horrific disasters to happen.  I know it is good and evil. But evil in surrogacy can cost the life of the baby and mother.”
–      Daisy from Goa

Did You Know?

By 2012, India was popularly known as Hub of Surrogacy as well as Capital Of Commercial Surrogacy. The commercial surrogacy industry was around USD 2.3 billion annually. The Indian Council for Medical Research (ICMR), further predicted growth of USD 6 billion per year. The secret of this mega popularity of commercial surrogacy was due to the medico-liberal legal framework unlike the laws in several other European countries, which strictly prohibited commercial surrogacy.

The Surrogacy (Regulation) Bill is soon going to be an Indian Act. And this new Surrogacy (Regulation) Act as per the year 2022, prohibits commercial surrogacy but allows altruistic surrogacy.

What Is Surrogacy?

• The act defines surrogacy as a practice where a woman gives birth to a child for an intending couple to hand over the child after the birth to the intending couple.
• A child born out of a surrogacy procedure is the biological child of the intending couple. 

Types of Surrogacies

• Altruistic surrogacy

  It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.

• Commercial surrogacy

  It includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

Eligibility Criteria For Couples Indenting Surrogacy

• Couple is having proven infertility condition. Either male or female suffering from infertility.
• Couple should have Indian citizenship
• Couple should be married for at least 5 years
• Age of wife should be between 23 to 50 years old and husband’s age between 26 to 55 years old
• 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 a life-threatening disorder or fatal illness.
• Not for commercial purposes
• Not for producing children for sale, prostitution, or other forms of exploitation
• For any condition or disease specified through regulations
• Insurance coverage for 16 months covering postpartum delivery complications for the surrogate
• If all the above criteria are met, then only you will be issued a certificate of essentiality and a certificate of eligibility by the appropriate authority to make you eligible for the Altruistic surrogacy process.

Eligibility Criteria For Surrogate Mother

• A close relative of the intending couple
• Age has to be between 25 to 35 years old
• A married woman
• Already having a child of her own
• Permitted to be a surrogate mother only once in her life
• Possess a certificate of medical and psychological fitness for surrogacy.
• The surrogate mother is not allowed to give her own eggs for surrogacy.
• The surrogate mother should not have any history of miscarriage or complications during her previous pregnancy & childbirth. 

Abortion During Surrogate Pregnancy

Abortion rules as per Surrogate (Regulation) Act –

• An abortion of the surrogate child requires the written consent of the surrogate mother and the authorization of the appropriate authority with compliance to the Medical Termination of Pregnancy Act, 1971.
• The surrogate mother has an option to withdraw from surrogacy before the embryo implantation.

Offences and penalties related to surrogacy in India

In order to stop the exploitation of surrogate mothers & children, some penalties have been established by the Indian Government.

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

Indian Surrogacy Regulations – A Patriarchal Act?

The altruistic model expects a woman to become a surrogate mother only out of compassion and not to expect any remuneration for the physical, emotional, social & financial needs during pregnancy.  

We ask – Why can’t she ask?

Such an expectation from a surrogate mother is unethical, unrealistic, inhumane and patriarchal in its approach. Not all women are wealthy or willing to do only under compassion. This also takes away their own source of income and social freedom as due to pregnancy they might not be able to work or not discuss their pregnancy openly. Further, it severely limits the number of women willing to go through surrogacy and indirectly denies intending parents the opportunity to avail of it.

It denies the opportunity to the LGBTQ community, live-in couples, and single parents.

It does not consider other medical conditions which are not directly related to infertility but can cause a high risk or difficult pregnancy for a woman who wishes to opt for surrogacy in such a case.

It also does not consider cases where women might not want to go through pregnancy due to career-related commitments, or personal choice of not getting pregnant.

We strongly feel that surrogacy should be a reproductive right of citizens willing to be a parent of a child, who is also rationally eligible to take care of emotional, physical, mental, social, educational & intellectual aspects of a child. We definitely need more reforms.

Share your thoughts in the comment section.

About Author :

Gitanjali Banerjee

She is founder of Fertility Dost. She is a content marketer by profession, travel blogger by passion & entrepreneur by life’s calling. She started Fertility Dost after struggling with infertility for 10 years.  A proud IVF mom!