Surrogacy (Regulation) Act 2021 Challenged

News Highlights

A petition was filed before Delhi High Court, challenging the exclusion of a single man and a woman having a child from surrogacy and demanded the decriminalization of commercial surrogacy which was excluded in the Surrogacy (Regulation) Act 2021

• The petitioners have contended that they stand ousted from availing the benefit of surrogacy as a reproductive choice which is discriminatory and in violation of Articles 14 and 21 of the Constitution.
• Petitioner No. 1 (being a single male)
  • Arbitrarily ousted from any benefit under the impugned Acts at all 
• Petitioner No. 2 (being a married woman and a mother)
  • Not being able to find and obtain consent from an eligible surrogate mother cannot avail of surrogacy as a reproductive choice and is also barred under the Acts as she does not have medical indication necessitating surrogacy,” the petition has said.

Surrogacy (Regulation) Act 2021

• The Surrogacy (Regulation) Act 2021 came into effect from 25th January 2022. 
• Background

• The Act aims to prohibit commercial surrogacy and allows for altruistic surrogacy.
  • Commercial surrogacy
    • The surrogate mother is compensated by money for her services beyond reimbursement for her medical expenses. 
    • The arrangement of compensation in an unequal society could potentially pave way for exploitation of surrogate mothers and the intending parents.
  • Altruistic surrogacy
    • The surrogate mother doesn’t receive any monetary compensation other than the medical expenses and insurance during the pregnancy.   
• Eligibility criteria for couples intending to opt for surrogacy.
  • The eligible couple should have a ‘certificate of eligibility ‘ and ‘certificate of essentiality’ issued by the authorities in charge.
  • Additional criteria as listed below
    1. Heterosexual couple (each of the opposite gender) with a man aged 26 to 55 years and women aged 25 to 50 years.
    2. The couple should be married for a minimum of five years.
    3. Should have no other children, including biological, adopted, or surrogated.
       • However, the Act waives off this condition for couples who have children with (a) physical/mental disability (b) life-threatening disorder.
    4. The Act further requires a waiting period of five years (from the date of marriage) before issuing a certificate of infertility to the couple. 
       • This clause directly curtails the couples’ freedom to start a family earlier. 
• Challenges of Surrogacy (Regulation) Act 2021
  1. Emotional complications
     • Having a friend or relative as a surrogate mother may lead to emotional complications
  2. Disadvantages of altruistic surrogacy
     •  Limits the option of the intending couple in choosing a surrogate mother as very limited relatives will be ready to undergo the process.
     • There is no third-party involvement. 
       • A third-party involvement ensures that the intended couple will bear and support the medical and other miscellaneous expenses during the surrogacy process. 
  3. Reinforces the patriarchal values
     • Age-limits given for men and women in the Act reinforces the patriarchal values that men have to be older than women 
  4. Denying the dignity of Children with Dissability
     • The Act considers having children with physical and special needs as childless. 
     • This clause directly violates the right of the children with the disability
  5. Denied the rights of LGBTQ+
     • LGBTQ+ community forms 15% of the total population and around 20% of the population going for surrogacy accounts for single parents. 
     • This law comes as a backlash to the other laws passed in favor of the LGBTQ+ community, like banning Section 377 and Right to Privacy. 
  6. It also remains silent on the procedure to be followed if only one of the parents is eligible as per the clause, whereas, the other is not.  

Conclusion

• The Act is without a doubt a step in the right direction. However, dynamic oversight is required to ensure that the law keeps pace with rapidly evolving technology, moral demands, and societal changes.

Pic Courtesy: Business Standard

Source – The Hindu

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Created on June 06, 2022 By Pavithra

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