Surrogacy Regulation Act 2021 UPSC Notes: Background, Purpose, Features & More

The Surrogacy Regulation Act 2021 is a legislative framework introduced in India to regulate the practice of surrogacy. The act aims to prevent its commercial exploitation and to protect the rights of surrogate mothers and intended parents. This act outlines the legal processes for surrogacy arrangements, specifies the eligibility criteria for both surrogates and intended parents and prohibits commercial surrogacy while permitting altruistic surrogacy. It also establishes a National Surrogacy Board to oversee the implementation and adherence to these regulations.

The topic of the Surrogacy Regulation Act 2021 pertains to the General Studies Paper II (Governance, Constitution, Polity, Social Justice, and International relations) of the UPSC Civil Services Examination. It is relevant under sections discussing welfare schemes for vulnerable sections, mechanisms for their protection, and issues relating to the development and management of social sector services.

Latest News Related to the Surrogacy Regulation Act 2021

As of July 2024, the Surrogacy Regulation Act 2021, continues to be a subject of debate and scrutiny. Recently, a number of Public Interest Litigations have been filed before the Supreme Court assailing some very restrictive provisions of the Act, especially the provisions limiting surrogacy to a close relative. The Ministry of Health and Family Welfare announced, in April 2024, a Special Review Committee to look into these problems and recommend revisions that might, in turn, pave the way for amendments to give the Act wider coverage and make it implementable.

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What is the Surrogacy Regulation Act 2021?

The Surrogacy Regulation Act 2021, is the Act of Indian Parliament coming into force in India and regulating the practice of surrogacy within the country. The bill aims at legitimizing surrogacy through an ethical surrogate mother, with the main motive of saving her and the born child to protect their interests from being exploited due to the commercialization of the surrogacy system.

Background and Purpose of the Act

India had become a popular place for commercial surrogacy because of lower costs and liberal laws. On the contrary, it had raised some of the ethical and legal issues, such as exploitation of the poor women, no rights available to surrogate women, and furthermore, legal tangles over child abandonment, etc. This demanded effective legislation and thus gave birth to the Surrogacy Regulation Act 2021. The basic intent of the Act is to:

• Ban commercial surrogacy.
• That only altruistic surrogacy be recognized.
• Mandate the rights of both surrogate mothers and children.
• Promote ethical and transparent surrogacy.

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Key Features of the Act

Following are some of the important features of the Surrogacy Regulation Act 2021. These features are aimed toward making a regulated and ethical framework within which surrogacy would occur within India, addressing concerns of exploitation and ensuring the process be conducted with respect for the rights of parties involved.

• Definition and Prevention: The Act clearly defines surrogacy and prohibits commercial surrogacy, in practice. It allows only altruistic surrogacy, where no monetary compensation is allowed except medical expenses.
• Who can apply for Surrogacy: Only Indian heterosexual couples who have been married for at least five years and are infertile can go for surrogacy. They require to get a certificate of essentiality and eligibility from the said appropriate authority.
• Surrogate Mother's Criteria: As for the surrogacy mother, she should be a close female relative to the couple, married, and have borne at least one child of her own. She has to be in the age group of 25-35, and she can function as a surrogate only once in her lifetime.
• Establishment of Authorities: The creation of both national and state surrogacy boards has been made a requirement. These boards will issue guidelines and control as well as regulate surrogacy-related matters. Clinics will have to be registered to carry out this procedure on their surrogates.
• Regulation of Surrogacy Clinics: Clinics must have proper registration and are bound to work under stringent guidelines. These are monitored vigilantly to ensure there is no malpractice.
• Protecting from Exploitation: The Act aims to protect the surrogate mother and the child from exploitation and ensures their rights and well-being.
• Legal Parenthood: A child born through the process of surrogacy will be the legal offspring of the intending couple. The surrogate mother will not have any right towards the child.
• Penal Provisions: Violations of the Act, including commercial surrogacy, advertising for surrogacy, and exploitation of the surrogate mother, shall draw penal provisions including imprisonment and fines.
• Pre- and Post-Procedure Counseling: The Act has mandatory provision for pre- and post-procedure counseling of the surrogate mother and the intending couple to understand the implications and responsibilities.
• Surrogacy Certificate: The intending couple should obtain a surrogacy certificate from the relevant authority that has to state reasons and necessity before practicing surrogacy.

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Controversies Behind the Act

The Surrogacy Regulation Act 2021 has elicited several controversies and criticisms from various stakeholders. Some of the major points of contention include:

• Ban on Commercial Surrogacy: Critics argue that prohibiting commercial surrogacy removes an authorized source of income for several women who choose to be surrogates out of economic necessity. They say this will drive it underground which could mean unregulated arrangements and potentially exploitative ones.
• Eligibility Criteria: The very stringent eligibility criteria of the act, particularly its requirement that a couple should already have been married for at least five years, and further the exclusion of single individuals or even LGBTQ+ couples, have been penalized by critics and deemed as discriminatory. Critics argue that it does not account for different family structures and limits access to surrogacy unfairly for people who cannot marry, or who for any reason choose not to marry.
• Close Relative Clause: This provision for a surrogate to be a close relative of an intending couple has also been subject to criticism. It has been argued that this places an almost insurmountable limit on the number of surrogates that may be recruited. It may well result in some kind of coercion in those families where women who might not otherwise be fascinated in becoming surrogates feel pressured or obliged by family duty to undertake this service.
• One-Time Surrogacy Limitation: The single surrogacy clause has been controversial. It has been that a woman should not become a surrogate just once in her life, but instead, women should be given the leeway to do it as many times as they would desire to do it if they were willing and of perfect medical health.
• Impact on Infertility Treatments: Due to very strict guidelines, some argue that the act would lead to a less progressive and accessible situation with infertility treatments. This would complicate things for a couple in search of a surrogate, hence having their journey to parenthood delayed.
• Impact on Surrogacy Clinics: The strict rules and regulations, in addition to a close check on every surrogacy clinic, may force many small-scale clinics to close. This might result in a monopoly of big medical houses that may make the services costlier.

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Conclusion

The Surrogacy Regulation Act 2021, is one such significant step in facilitating surrogacy in an ethical manner while safeguarding the interests of surrogate mothers and children. Still, the close regulation that the Act places, its exclusion of some sections, and the commercial usage propelled it wide open for a series of arguments and legal challenges. As the members of the Special Review Committee deliberate potential amendments, one can visualize the future of an Act that seeks to balance the three elements—ethical, legal, and societal—in the corridors of surrogacy in India. For an aspirant of UPSC, it becomes yet another layer in the understanding of an Act, which carries with it the larger implications for social justice and the entire construct of a legal framework that governs contemporary legislative measures.

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