Human cloning and Surrogacy

 What is Surrogacy? Explain the importance and factors of Indian Surrogacy?


  ■ In Intro, define surrogacy in brief.

■ In Body, write about importance of Surrogacy Regulation Act 2021 and explain who can avail altruistic surrogacy in India. 

■In conclusion, give an optimistic view and importance of surrogacy. 

Ans. Surrogacy is a medical service in which a female implant and embryo developed by IVF by using a couple’s sperm and ovum in her uterus and womb. The purpose of surrogacy is to provide nutrition  and development to the embryo by another female.  

In India, commercial surrogacy began in 2002, following ICMR rules. India quickly became a major international centre for commercial  surrogacy. But issues like exploitation of surrogate mothers, future of surrogate child, and invasion of dignity and privacy led to ban of surrogacy in India in 2015. 

To address the issue , the Government of India came up with Indian Surrogacy Regulation Act 2021. Some important provisions of the Act are following: 

■ Under the Act, only altruistic surrogacy is allowed  and commercial surrogacy is banned completely. 

Altruistic surrogacy can be provided  by close relatives of the couple who must be between 25-35 years of age and must be married and have at least one baby. 

■ Surrogates mother  can give only one surrogacy service  in her life.

 ■ It also provides provisions  relating to who all can avail the altruistic surrogacy and who cannot.

 ■ It also seeks to streamline the cryo-preservation processes for sperm, oocytes and embryos. 

■The law also mandates the central and state governments  to establish National Surrogacy Regulation Board, and State Surrogacy Regulation Board to regulate and control surrogacy in India. 

■ It also provides  for penal provisions if violated. 

 India has emerged as a hub for infertility treatment. This attracted many underprivileged  women to rent their wombs in exchange for money. The Act is certainly a step in the right direction. However, there needs to be a dynamic oversight to ensure that the law keeps up with rapidly evolving technology, demands of the morality and societal changes.


Why in the news?
 Recently, the Supreme Court in the Arun Muthuvel vs. Union of India case (2023) protected women’s right to parenthood and struck down the 2023 amendment to Surrogacy (Regulation) Rules, 2022.
 More on the news 
• In March 2023, the government notified amendments which banned the use of donor gametes.   The amendment mandated that both male and female gametes (sperm and egg respectively) must come from intending couples for the process of surrogacy. 

• In this case, the woman suffering from Mayer-Rokitansky-KusterHauser (MRKH) syndrome had challenged the 2023 amendment as the petitioner woman has absent ovaries and uterus; hence she cannot donate her eggs for surrogacy.

 bout Surrogacy and its types 

 • Surrogacy is a practice whereby one woman bears and gives birth to a child for an intending couple.Intending couple means a couple who have a medical indication necessitating gestational surrogacy and who intend to become parents through surrogacy.  Gestational surrogacy is a practice whereby a surrogate mother carries a child for the intending couple through the implantation of an embryo in her womb and the child is not genetically related to the surrogate mother.

 • Type of surrogacy  

 Altruistic surrogacy  : It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.   

Commercial  surrogacy :It includes surrogacy, or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

 • Government banned surrogacy for foreign nationals in 2015. 

Supreme Court observations in Arun Muthuvel V. Union of India Case

 • Supreme Court stayed the operation of Rule 7 of the Surrogacy (Regulation) Act, 2021, to allow a woman suffering from MRKH Syndrome to undergo surrogacy using a donor egg.  Rule 7 of the Surrogacy Act banned the use of donor eggs for the procedure

 • Supreme Court said that the 2023 amendment cannot contradict Rule 14(a) of Surrogacy Regulation Rules, 2022, which specifically recognises the absence of a uterus or any allied condition as a medical Indication necessitating gestational surrogacy. Centre said that the use of donor eggs cannot be done, as the process of surrogacy cannot be availed under the law unless the child was “genetically related” to the intending couple.  In this regard, SC held that the expression ‘genetically related’ to the intending couple has to be read as being related to the husband when Rule 14(a) applies.

 • The Court also noted that the law permitting gestational surrogacy was “woman-centric” and the decision to have a surrogate child was entirely based on the woman’s inability to become a mother.   However, the Court was of the view that before deciding the matter, it must obtain appropriate medical opinion and thus directed the concerned District Medical Board to certify whether the woman was in a position to produce eggs or not, due to MRKH syndrome. 

Surrogacy Laws in India  

• Surrogacy (Regulation) Act, 2021 (Surrogacy Act 2021) Only altruistic surrogacy is allowed and penalises commercial surrogacy.
  Establish National Assisted Reproductive Technology and Surrogacy Board (NARTSB) to review and monitor the implementation of the Act, supervise functioning of State ARTSB (SARTSB), etc.  
Eligibility criteria for surrogate mother: 
 (a)  a married woman having a child of her own, and 25 to 35 years old; 

 (b)  a surrogate only once in her lifetime;  (c)  possess a certificate of medical and psychological fitness for surrogacy.  o Eligibility criteria for couples: 

 (d)  if they have been married for five years, wife is aged between 25-50 years and husband is between 26-55 years.

  (e) Couple must not have any living child (biological, adopted or surrogate). 

 (f)Should have ‘essential’ certificate if suffering from proven infertility of either partner certified by a District Medical Board, and an order of parentage and custody of the surrogate child, passed by a Magistrate’s court.  
(g)  Insurance coverage for 16 months for the surrogate mother, covering any postpartum complications. 

 Abortion of surrogate child requires written consent of surrogate mother and authorisation of appropriate authority. 
(a) This authorisation must be compliant with Medical Termination of Pregnancy Act, 1971. 

Assisted  Reproductive  Technology  ( Regulation ) Act, 2021 ( ART Act) :  It aims to regulate and supervise ART clinics and banks, prevent its misuse and ensure safe and ethical practice of ART services for addressing the issues of reproductive health.  It brings into its ambit the treatment of surrogacy and hence ensures protection of the rights of surrogate mothers.

   Other key provisions  of surrogacy ( Regulation ) Rules, 2022:  Number of attempts of any surrogacy procedure on surrogate mother shall not be more than 3 times. A surrogate mother may be allowed for abortion during surrogacy in accordance with  Medical Termination of Pregnancy Act, 1971. Intending woman or couple shall purchase a general health insurance coverage in favour of surrogate mother for a period of 36 months from an insurance company or an agent recognized by Insurance Regulatory and Development Authority (IRDAI). 

Challenges associated with Surrogacy Regulation Ecosystem 

   Lack of re_ course : Surrogate mother and the intending couple are required to obtain certificates of eligibility and essentiality upon fulfilling various conditions for the surrogacy process. However, no process has been specified to review or appeal in case the surrogacy applications are rejected. 

 Conflicting laws : Surrogacy (Regulation) Act 2021 prohibits the storage of embryos and gametes for the purpose of surrogacy in contrast to ICMR National Guidelines for Accreditation, Supervision and Regulation of ART Clinics in India (2005) which allow storage for five years. 

 Ambiguity : Surrogate mother must be from the intending couple’s close relatives. However, there is a lack of clarity as to who constitutes as close relatives. 

  Right to Privacy  : In India, surrogacy is still seen as an unethical and unnatural form of childbirth. There is a lack of standard procedure for ensuring the privacy of the intending couple and surrogate which might lead to embarrassment.

  Lack of clarity in infertility  definition  : Surrogacy (Regulation) Act 2021 defines infertility as an inability to conceive after five years of unprotected coitus or other medical condition preventing a couple from conception.  o However, the definition does not cover cases such as inability to carry a child for 9 months, multiple fibroids in the uterus etc. in which a couple is unable to bear a child. 

Way forward

    Navigating Social stigma : Given the stigma surrounding infertility, additional efforts can be taken to ensure the privacy of associated parties.  

 Awareness: eliminate the exploitation of surrogate mothers they need to be made aware of their rights and the associated risks to gain their informed consent.  o For example, surrogates should be made aware of the rare intrapartum and postpartum complications by the delivering physician and hospital.

 Clarity : There is a need to clearly define terms such as close relatives, infertility etc. Also, the definition of infertility should be expanded to take into account the medical factors, and diseases of the intended parents. 

Grievance Redressal :  A redressal mechanism should be created highlighting the process of review or appeal in case the surrogacy application is rejected. 

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