To have and not to hold

A star couple in Chennai who had posted pictures of their new-born twins on social media has inspired conversations around the question of surrogacy. The couple who had tied the knot in June this year became a topic of debate after queries were raised on whether the children were delivered via a surrogate, and if the duo had abided by the laws of the land. Health Minister Ma Subramanian had said the Directorate of Medical Services will seek an explanation from the couple.

One may recall that the Centre had banned the practice of commercial surrogacy in India, and only permitted altruistic surrogacy, that too, under exceptional circumstances. It was in July 2019 that the Surrogacy (Regulation) Bill was introduced in the Lok Sabha. It was passed by both Houses of the Parliament in 2021, following which the Surrogacy (Regulation) Act 2021 came into force in January 2022. The regulation says that a couple seeking surrogacy is deemed eligible if they have been married for five years. The couple must also not have had a living child, with the exception being the child suffering from physical, mental disabilities or terminal ailments. The couple needs to prove that one or the other partner is infertile. An Indian woman who is a divorcee or a widow, aged 35-45 can also opt for this procedure.

For the woman intending to be a surrogate, the rules are more stringent. The surrogate needs to be a married woman with a child of her own and she can act as a surrogate only once in her lifetime. She also needs to be genetically related to the couple, and is entitled only to medical expenses. The Surrogacy (Regulation) Act provides a gestation period of about 10 months from the date of it being implemented to protect the well-being of surrogate mothers who are undergoing the procedure.

The restrictions around surrogacy stem from the manner in which commercial surrogacy was exploited in India. Since 2002, commercial surrogacy had been legal in India, which turned it into the surrogacy capital of the world. Government data from 2012 revealed that as much as 80% of surrogate babies born in that year were commissioned by foreign couples. However, illegal surrogacy is still a threat today. In June, a 16-year-old girl from Erode approached the police station to complain about how she was forced to sell her oocytes to private fertility clinics by her kin several times over five years. It was indicative of how the Assisted Reproductive Technologies (Regulation) Act and the Surrogacy (Regulation) Act were being misused.

Legal experts believe that surrogacy norms in India violate an individual’s reproductive autonomy and right to procreation and parenthood, subjects outside the ambit of the State. The certificate to prove infertility is also seen as an invasion of privacy. The punishment for contravention of any provision of the Act, which is Rs 10 lakh in fine, and 10 years of imprisonment will be a deterrent to medical practitioners in performing such procedures. This is telling considering there are just 1,000-odd clinics across India that practice surrogacy.

The government has been tasked with constituting national and State-level Surrogacy Boards (NSB and SSBs). The NSB’s job is to advise the Centre and put in place code of conduct for such clinics and auditing the implementation of the Act. Authorities at both levels are empowered to grant as well as suspend licences as well as act upon complaints. Such initiatives will require a synergy between stakeholders in the States, the Centre and even private enterprises in the healthcare space, who can collectively ensure that a good deed does not elicit punishment.