Allow Surrogacy For Single Men, Mothers: Delhi HC

Context 

The Delhi High Court issued a notice to the Union government on a petition challenging some provisions of the Surrogacy (Regulation) Act and the Assisted Reproductive Technology (Regulation) Act.

Issues raised by the petition

• Currently, the law does not allow single men to have children through surrogacy.
• Married women can only avail surrogacy services if they are unable to produce a child due to medical conditions.
• Otherwise, for women to avail of surrogacy services, they must be aged between 35 and 45 and widowed or divorced.
• Women can only offer surrogacy if they are aged between 25 and 35 and married with at least one biological child.
• The laws also require a surrogate to be genetically related to the couple who intend to have a child through this method, their petition said.

Features of the Surrogacy (Regulation) Act, 2021

• Definition of surrogacy: It defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple.
• Regulation of surrogacy: It prohibits commercial surrogacy, but allows altruistic surrogacy which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance.
• Purposes for which surrogacy is permitted: Surrogacy is permitted when it is-
• for intending couples who suffer from proven infertility
• Altruistic
• not for commercial purposes
• not for producing children for sale, prostitution or other forms of exploitation
• for any condition or disease specified through regulations
• Eligibility criteria: The intending couple should have a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the appropriate authority ex. District Medical Board.

Assisted Reproductive Technology (ART)

• It is used to treat infertility.
• It includes fertility treatments that handle both a woman's egg and a man's sperm.
• It works by removing eggs from a woman's body.
• The eggs are then mixed with sperm to make embryos.
• The embryos are then put back in the woman's body.
• In vitro fertilization (IVF) is the most common and effective type of ART.
• ART procedures sometimes use donor eggs, donor sperm, or previously frozen embryos.
• It may also involve a surrogate or gestational carrier.
• A surrogate is a woman who becomes pregnant with sperm from the male partner of the couple.
• A gestational carrier becomes pregnant with an egg from the female partner and the sperm from the male partner.
• The most common complication of ART is a multiple pregnancy.
• It can be prevented or minimized by limiting the number of embryos that are put into the woman's body.

Surrogacy

• Surrogacy involves a woman agreeing to carry a baby for someone else.
• After the baby is born, the birth mother gives custody and guardianship to the intended parent or parents.
• A woman who agrees to carry and give birth to a baby for another person is a surrogate or birth mother.
• Parents of a baby born through a surrogacy arrangement are known as intended or commissioning parents.
• India is one of the few countries that still allow commercial surrogacy.
• Commercial surrogacy, on the other hand, is allowed in India without any legal basis.
• This essentially implies that, while commercial surrogacy is legal in India, there is no particular law governing it.