ANALYSIS OF SURROGACY REGULATION ACT 2021 BY - DAYA SHANKAR TIWARI
ANALYSIS
OF SURROGACY REGULATION ACT 2021
AUTHORED
BY - DAYA SHANKAR TIWARI
Research
Scholar
Barkatullah
University, Bhopal
Abstract
The
desire of infertile couple to have a child of their own has inter alia led to the
concept of surrogacy. It has its own welcomes and flip side. Surrogacy is a
practice where a woman who is, or is to become, pregnant agrees permanently to
surrender the child (ren) born of that pregnancy to another person or couple
(the desire parents). It involves conflict of various interests and would have
inscrutable impact on the primary unit of society viz. family. The present paper focuses particularly upon
the surrogate, while also discussing some issues relating to children born as a
result of such arrangements. The paper would also be an analysis of the current
existing legal framework for surrogacy in India.
Key
words- surrogacy, analysis,
1.
Introduction
In
the recent time, the concept of surrogacy is evolving quickly and is of prime
importance to those couples who are infertile and therefore it is significant
to regulate the surrogacy market and bring out the necessary legislation to remove
any ambiguity which is faced by the masses. The Surrogacy (Regulation) Bill,
2019 was introduced in Lok Sabha on July 15, 2019 and passed by House on August
5, 2019. The 2019 Bill was referred to a Select Committee which submit its
report on February 5, 2020.
The Surrogacy (Regulation) Bill 2019 was passed in Rajya Sabha on December 8,
2021 with certain amendments (as suggested by Select Committee) and finally
enacted as a law on the 25th December 2021. It was released with
Assisted Reproductive Technology (Regulation) Act 2021 and came into force on
25th January 2022.
The Act seeks to establish
operational rules and institutional infrastructure to protect the bonafide
interests of the parties wanting a child through surrogacy. The main objective
of the Bill is to prevent exploitation of surrogate mothers, abandonment of
children born out of surrogacy and the import of human embryos and gametes
which have been reported over the years. Further the very purpose of the Act is
to ensure that the procedure of surrogacy remains ethical and transparent and
promote the welfare of all the parties involved in the surrogacy contract.
2. Analysis of the Act
The surrogacy Regulation Act is
divided into VIII chapters and total 54 sections.
Chapter I
of the Act deals with preliminary and provide for the enforcement and
definition clauses. Section 2 of the Act provides
for the definition clause. Terms such as ‘altruistic surrogacy’,
‘commercial surrogacy’,
‘insurance’ ‘intending
woman’
‘surrogacy’,
surrogate mother have been defined coherently. ‘Compensatory Surrogacy’ has
been omitted since it could have led to commercialization of surrogacy.
Chapter II (Section 3)
of the of the Act deals with the Regulation of Surrogacy Clinics. The section 3
of the Act provides for the prohibition and regulation of surrogacy clinics.
Chapter III (Section 4 to
Section 10) of the Act deals with Regulation of
surrogacy and surrogacy procedures. It lays the need to obtain certifications
and only then procedures can be performed in government recognized clinics. For
the procedure, the following certification are necessary and then only
surrogacy procedures can be conducted.
Certificate of Essentiality: it is
granted as per form 11 to the intended couple if the conditions under Section 4
(iii) a of the Act are satisfied.
Certificate of eligibility: it is
provided to the surrogate mother and intending mother as per section 4 (iii)
(b) and (c)
Chapter IV (Section 11 to
Section 11) of the Act deals with Registration
of surrogacy clinics and establishment of National Assisted Reproductive
Technology and Surrogacy Registry.
Chapter V (Section 17 to
Section 34) of the Act deals with the
constitution of national Assisted Reproductive Technology and Surrogacy Board
and State Assisted Reproductive Technology and Surrogacy Boards. Through the
establishment of National Surrogacy Board at the central level and State
Surrogacy Board and appropriate authorities in states and Union Territories,
the Act seeks to regulate the practice of surrogacy and monitor it closely. The
function of Boards is to advise the Central Government on policy formulation
relating to surrogacy, monitor and review the implementation of the Act or
rules and regulations, laying down the code of conduct of surrogacy clinics,
supervise the functioning of State Surrogacy Board and performance of various
bodies constituted under the Act.
Chapter VI (Section 35 to
Section 37) of the Act deals with the
appointment of appropriate authority and their functions. To put a stricter
regulatory mechanism in place, the Act empowers the appropriate authority to
issue, suspend, or cancel the registration of surrogacy clinics; recommend the
accurate standards; investigate and take actions in case of any deviation from
the Act and lastly to take into account the change in technology and social
conditions.
Chapter VII (Section 38
to Section 45) of the Act deals offences and
penalties. The offence under this shall be cognizable, non-bailable and non-
compoundable. Strict punishment has been provided under the Act for
contravening the provision of the Act. Ensuring stringent punishment helps in
fulfilling the obligations arising out of surrogacy contracts and protecting
the interest of bonafide parties.
Chapter VIII (Section 46
to Section 54) of the Act deals with miscellaneous
provisions.
3.
Lacunae
in the Act
i)
Complete ban on
commercial surrogacy
The Surrogacy (Regulation) Act 2021 put complete ban on
commercial surrogacy. The ‘right to livelihood’ is an essential ingredient as
provided under Article 21 of the. But this right of livelihood is violated as
the 2021Act puts a complete ban on commercial surrogacy. Surrogacy was a means
of livelihood for many low-income Indian women. A complete ban on it will now
make them financially dependent on others.
ii)
Exclusion of LGBT community
The Surrogacy (Regulation) Act 2021 only allows a
man and a woman alone, who are legally married under Indian laws, to avail of
surrogacy services, thus prohibiting non-binary and same sex couples from
experiencing the joy of parentage.
4.
Conclusion
The
Surrogacy (Regulation) Act 2021 is a progressive piece of legislation that aims
to protect the interest of bonafide parties and allows them to opt for
surrogacy procedure in more easy way. The Act aims to prevent the exploitative
practices that were carried out earlier and ensure that the provisions of the
Act to be carried out ethically and transparently by regulating the surrogacy
procedure. The Act plays a pivotal role and act as pillar of support to the
parties by fulfilling the aspirations of infertile couples. No doubt the Act is
complete in itself but it has some lacunae as well which needs to be addressed.
