Recently, a petition was filed in the High Court of Delhi requesting the exclusion of single men and women, from having a child through surrogacy, and demanding the non-criminalization of commercial surrogacy. The petitioner objected to the exclusion of surrogacy under the Assisted Reproductive Technology (Regulatory) Act of 2021 and the Surrogacy (Regulatory) Act of 2021. The Petitioner argued that the personal decision of a single person about the birth of a baby through surrogacy, i.e., the right of reproductive autonomy is a facet of the right to privacy guaranteed under Article 21 of the Constitution. Therefore, the right to the privacy of all citizens or individuals to be freed from unjustified state intervention in issues that fundamentally influence the decision to give birth or father a child through surrogacy, should not be restricted.

What is the 2021 Surrogacy (Regulation) Act? 

Regulations: 

•  Under the Surrogacy Act 2021, widowed or divorced women between the ages of 35 and 45, or couples defined as legally married women and men, who suffer from any medical conditions that prevent them from having a baby of their own, are eligible for availing surrogacy. 
• Commercial surrogacy is banned with a jail term for 10 years and fine up to 100,000 rupees. 
• The law only allows altruistic surrogacy, where no money exchange takes place, and the surrogate is genetically associated with thechild 

Challenges

Exploitation of surrogate mothers and children: Some may argue that the state must stop the exploitation of poor women through surrogacy and protect the right to have children. However, the current Act fails to balance these two interests.  

Reinforces Patriarchal Norms: The Act reinforces traditional patriarchal norms of our society that attributes no economic value to women`s work and, directly affects the fundamental rights of the women to reproduce under Article 21 of the constitution.  

Denies Legitimate income to Surrogates: Banning commercial surrogacy also denies a legitimate source of income of the surrogates, further limiting the number of women willingly to surrogate.  Overall, this step indirectly denies children to the couples choosing to embrace parenthood.  

Emotional Complications: In an altruistic surrogacy, a friend or relative as a surrogate mother may lead to emotional complications not only for the intending parents but also for the surrogate child as there is a great deal of risking the relationship in the course of surrogacy period and post birth.  Altruistic surrogacy also limits the couple''s choices intended when choosing a surrogate mother. Because few relatives are willing to go through the process. 

No third party involvement: There is no third party involvement in altruistic surrogacy. The involvement of a third party ensures that the target couple will bear and support  medical and other costs during the surrogacy process.  Overall, having a third party helps both the intended couple and the surrogate to navigate  the complex process. This may not be possible in the case of altruistic surrogacy.

What is surrogacy? 

 Surrogacy is an arrangement in which a woman (surrogate) agrees to carry and give birth to a child on behalf of another person or couple (intended parent). 

 A surrogate mother sometimes referred to as a gestational carrier, is a woman who conceives, carries, and gives birth to a child for another person or couple (intended parent). 

Altruistic surrogacy: 

 It does not include financial compensation to the surrogate mother other than  medical expenses and insurance coverage during  pregnancy. 

Commercial surrogacy: 

 This includes surrogacy or  related procedures performed for  monetary gains or rewards (cash or in-kind) beyond the scope of basic medical expenses and insurance.

What is Assisted Reproductive Technology(ART)? 

ART is used to treat infertility. This includes fertility treatments that treat both female eggs and male sperm. It works by removing eggs from a woman''s body and mixing them with sperm to make an embryo. The embryo is then reinserted into the female body.  In vitro fertilization (IVF) is the most common and effective form of ART.  ART procedures may use donor eggs, donor sperm, or previously frozen embryos. It can also be a replacement carrier. 

Law: 

•  The 2021 Assisted Reproductive Technology Act (ART) Regulation provides a system for implementation of the law on surrogacy through the establishment of the National Assisted Reproductive Technology and Surrogacy Board.  
• The law aims to regulate and supervise ART clinics and assisted reproductive technology banks, prevent abuse and ensure safe and ethical practice of ART services. 

Shortcomings-: 

 Exclusion of unmarried and heterosexual couples: 

• The Act excludes unmarried men, divorced men, widowed men, unmarried yet cohabiting heterosexual couples, trans persons and homosexual couples (whether married or cohabiting) from availing ART services.
• This exclusion is relevant because the surrogacy law also excludes the above individuals from resorting to surrogacy as a method of reproduction. 

Reduce reproductive options: 

•  The law is also limited to commissioning couples who are infertile- who were unable to become pregnant one year after unprotected sexual intercourse. 
• As such, it has limited  application and significantly reduces  reproductive choices of those excluded.  

Unregulated price: 

•  The price of the service is not regulated. This can certainly be fixed with a few simple steps. 

Way Forward

• India is one of the main centers of these practices, and the law is certainly a step in the right direction.
• However, dynamic oversight is needed to keep the law  up to the rapidly evolving technology, moral demands, and social changes.