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Surrogacy in India

Surrogacy has become an increasingly popular and complex subject in India. It involves the legal, ethical, and emotional dimensions of assisted reproductive technology. In this detailed analysis, we will delve into the various aspects of surrogacy laws, guidelines, case laws, and the challenges faced by all the parties involved.

Definition of Surrogacy

Surrogacy is a method of assisted reproduction where a woman, known as the surrogate mother, agrees to bear a child for another person or couple, known as the intended parents.

Legal Framework Governing Surrogacy

The Surrogacy (Regulation) Act, 2021:

  • Prohibition on Commercial Surrogacy: The Act prohibits commercial surrogacy but allows altruistic surrogacy.

  • Eligibility Criteria: It sets specific conditions for the surrogate mother and the intended parents.

  • Establishment of Regulatory Bodies: It calls for setting up National and State Surrogacy Boards to regulate surrogacy.

The Indian Council of Medical Research (ICMR) Guidelines:

  • These guidelines provide an ethical framework and standard protocols for conducting surrogacy.

Related Legal Provisions:

  • Certain provisions under the Indian Contract Act, 1872, and the Medical Termination of Pregnancy Act, 1971, may also apply.

Types of Surrogacy

Altruistic Surrogacy:

The surrogate mother does not receive any monetary benefit other than medical expenses and insurance.

Commercial Surrogacy:

Surrogate mother receives monetary compensation. (Prohibited in India)

Ethical Considerations

  • Protecting the rights and well-being of the surrogate mother.

  • Ensuring the welfare of the child.

  • Transparency and informed consent.

Case Laws Related to Surrogacy

Baby Manji Yamada vs Union of India (2008):

This case led to recognition of the need for comprehensive legislation on surrogacy.

Jan Balaz vs Anand Municipality (2010):

It dealt with the citizenship rights of children born through surrogacy to foreign nationals.

Challenges and Criticisms

  1. Legal Lacunae: Absence of comprehensive legislation for a long time.

  2. Exploitation Risk: Possibility of exploitation of economically weaker women.

  3. Ethical Dilemmas: Complex ethical issues surrounding consent, compensation, and the rights of all parties involved.

Conclusion: Surrogacy in India

Surrogacy in India is governed by a combination of laws, guidelines, and ethical considerations. The Surrogacy (Regulation) Act, 2021, provides the main legal framework, with support from ICMR guidelines and other related laws. While altruistic surrogacy is allowed, commercial surrogacy is prohibited to prevent potential exploitation. Various landmark cases have shaped the understanding and regulation of surrogacy in India.

Despite these measures, challenges persist, including legal ambiguities and ethical dilemmas. The evolving nature of surrogacy demands continuous reflection and potential reform in law to ensure that the rights and welfare of all involved parties are protected and balanced. The unique combination of law, ethics, medicine, and emotion makes surrogacy a complex and multi-dimensional subject in the Indian legal landscape.

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