Syllabus
GS Paper 1 – Social empowerment, communalism, regionalism & secularism.
GS Paper 2 – Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Context
Supreme Court has protected the right of parenthood of a woman, suffering from Mayer Rokitansky Kuster Hauser syndrome.
Pre-requisites to be known
What is Mayer Rokitansky Kuster Hauser syndrome?
- An uncommon congenital disorder that affects the female reproductive system, leading to an underdeveloped uterus and typically a small or absent uterus and a shortened vaginal canal.
- It is characterized by a range of reproductive anomalies, including underdeveloped female reproductive organs, causing challenges in fertility and menstruation.
What is Surrogacy?
- It is defined as a practice wherein one woman bears and gives birth to a child with the intention to thereafter hand it over to the intending couple.
What is the status of surrogacy in India?
- In India, commercial surrogacy is prohibited, and surrogacy procedures are only allowed for altruistic purposes, with strict regulations against any monetary compensation.
Recent Case and Supreme Court verdict
Supreme Court has protected the right of parenthood of a woman, suffering from Mayer Rokitansky Kuster Hauser syndrome, by staying the operation of a law which threatened her to become a mother through surrogacy.
- In 2021, the Indian parliament enacted two laws –
- Surrogacy (Regulation) Act, which oversees surrogacy practices in the country, and it granted a 10-month gestation period from the date of implementation to safeguard the well-being of current surrogate mothers.
- Assisted Reproductive Technology (Regulation) Act, which was implemented to oversee and supervise clinics and banks offering assisted reproductive technology services, permits these services for women aged 21 to 50 and men aged 21 to 55.
- Assisted reproductive technology procedures covered by the Act encompass gamete donation, intrauterine insemination, and in-vitro fertilization (IVF).
- 2023 Amendment:
- A government notification in March 2023 amended the law, banning the use of donor gametes.
- It said “intending couples” must use their own gametes for surrogacy which is a violation of woman’s right to parenthood.
- This is contrary to the main provisions of the Surrogacy Act both in form as well as in substance.
- SC verdict –
- In this case, SC stated amendment cannot contradict Rule 14(a) which specifically recognises the absence of a uterus or any allied condition as a medical indication necessitating gestational surrogacy.
- Regarding the government’s argument that the surrogate child must be genetically linked to the couple, the court clarified that the child should be related to the husband.
- When Rule 14(a) is in effect, the term “genetically related to the intending couple” should be understood as being linked to the husband.
Major Provisions of Law:
- Surrogacy (Regulation) Act allows gestational surrogacy exclusively for married couples with specific medical conditions, and they must acquire a recommendation certificate from a District Medical Board.
- What does ‘Gestational surrogacy’ mean?
- She has no uterus or missing uterus or abnormal uterus or if the uterus is surgically removed due to any medical conditions such as gynaecological cancer.
- Intended parent or woman who has repeatedly failed to conceive after multiple In vitro fertilization or Intracytoplasmic sperm injection attempts.
- Multiple pregnancy losses resulting from an unexplained medical reason, unexplained graft rejection due to exaggerated immune response;
- Any illness that makes it impossible for a woman to carry a pregnancy to viability or pregnancy that is life threatening.
- What does the term ‘intending’ relate to?
- An intending woman who is a widow or divorcee between the age of 35 to 45 years can also avail the surrogacy.
- The intending couple where the woman is of the age of 23 to 50 years and a man between 26 to 55 years is eligible under the law.
- Only such intending couples can apply who have not had any surviving child biologically or through adoption or earlier surrogacy.
- Some exceptions:
- An exception has been provided for the couples whose child is “mentally or physically challenged or suffers from life threatening disorder or fatal illness with no permanent cure”.
- The intending couple or intending woman is not allowed to abandon the child, born out of a surrogacy procedure, for any reason whatsoever.
- What is the status of surrogate child?
- A child born out of a surrogacy procedure is deemed to be a biological child of the intending couple or intending woman.
- Eligibility to be a surrogate mother:
- A married woman of the age of 25 to 35 years on the day of implantation, with a child of her own, can be a surrogate mother.
- She can act as a surrogate mother only once in her lifetime and with only three attempts of procedure is allowed.
- The woman has to give a written informed consent for the purpose and also be medically and psychologically fit.
- No charges other than medical expenses can be given to the surrogate mother or her dependents or her representative by the intending couple or woman.
- Abortion:
- A surrogate mother can be allowed abortion during the process of surrogacy only in accordance with the Medical Termination of Pregnancy Act.
- She also cannot disclose the identity of the couple seeking the surrogacy.
Click here to read about Abortion-An Ethical Perspective
- Penalty:
- Offenses under the Act, including commercial surrogacy, selling embryos, exploiting, or abandoning a surrogate child, are punishable with up to 10 years of imprisonment and a fine of up to ₹10 lakhs.
- Regulation of Surrogacy Clinics:
- No Surrogacy Clinic can conduct or associate with or help in any manner in conducting the surrogacy procedure unless it is registered under the law.
Lacunae in law:
- Challenging Discrimination: Critics argue that the two Acts exhibit discrimination against single men aspiring to be fathers through surrogacy and married women seeking to expand their families, as they disqualify individuals based on nationality, marital status, sexual orientation, or age, which they consider inconsistent with the principle of equality.
- Reproductive Autonomy and State Intervention: Advocates for reproductive autonomy, encompassing the right to procreation and parenthood, assert that this realm should be beyond the scope of government regulation.
- They argue that imposing compulsory infertility certification infringes on an individual’s privacy, contravening Article 21 of the Constitution, which safeguards the right to life.
- India’s Role as a Surrogacy Hub: India has gained prominence as a destination for infertility treatment, attracting individuals from around the world due to its cutting-edge technology and competitive pricing for addressing infertility-related issues.
Step ahead:
- Surrogacy in India: Surrogacy is legally permitted in India, with a prohibition on commercialization, emphasizing its humanitarian nature, and formal recognition by the law.
- This practice falls within women’s reproductive choices and is considered a fundamental right under Article 21 of the Indian Constitution.
- Implementation of Surrogacy Laws: The surrogacy laws, effective from January 25, grant a ten-month gestation period for existing surrogate mothers to ensure their well-being. Before these laws were enacted, the Indian Council of Medical Research had issued a ‘Code of Practice, Ethical Consideration, and Legal Issues’ for clinics involved in surrogacy procedures.
- Guidelines for Surrogacy: According to these guidelines, surrogacy via assisted conception is typically reserved for patients for whom it is physically or “medically impossible” to carry a pregnancy to term. Additionally, they stipulate that surrogate mothers should not be over the age of 45.
Source: The Hindu
Practice Question
India’s regulation of surrogacy lacks comprehensive protection of individual bodily autonomy and the assurance of reproductive freedom. Critically analyse. (Answer in 250 words)