Surrogacy (Regulation) Act, 2021

General Studies Paper-2

Context

• The Supreme Court reserved its verdict on petitions challenging the age cap for couples seeking to have a child through surrogacy.
• The Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021, prescribe the legal framework for surrogacy.

Surrogacy (Regulation) Act, 2021

• Surrogacy: The Act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand it over to them after the birth.
  • It is permitted only for altruistic purposes or for couples who suffer proven infertility or disease.
  • Surrogacy is prohibited for commercial purposes including for sale, prostitution or any other forms of exploitation.
• Abortion: Abortion of such a fetus is allowed only with the consent of the surrogate mother and the authorities and must adhere to the provisions of the Medical Termination of Pregnancy Act.
• Eligibility and Conditions for Couples: A couple should procure certificates of eligibility and essentiality in order to have a child via surrogacy.
  • The couple is deemed ‘eligible’ if they have been married for five years, the wife is aged between 23-50 years and the husband is between 26-55 years, and single women must be between the ages of 35 and 45 years.
  • The couple must not have any living child (biological, adopted or surrogate).
  • A child with mental or physical disabilities, or one suffering from a life-threatening disorder has been exempted from the above criterion.
  • The couple can get an ‘essential’ certificate if suffering from proven infertility of either partner certified by a District Medical Board.
  • They must also have insurance coverage for 16 months for the surrogate mother, covering any postpartum complications.
• Eligibility to be a surrogate: A surrogate mother has to be a close relative of the couple, a married woman with a child of her own, aged between 25-35 years, who can be a surrogate only once in her life.
  • She must also possess a certificate of medical and psychological fitness for surrogacy.
• Regulation: It mandates the constitution of National Surrogacy Board (NSB) and State Surrogacy Boards (SSB) respectively.
  • This body is tasked with enforcing standards for surrogacy clinics, investigating breaches and recommending modifications.
• Offences: Offences under the Act include commercial surrogacy, selling of embryos, exploiting, abandoning a surrogate child etc.
  • These may invite up to 10 years of imprisonment and a fine of up to Rs. 10 lakh.

Arguments in Favour of the Age Limit for Intending Parents:

• Child Welfare and Parenting Capacity: Ensures that parents are physically and mentally capable of raising a child through their formative years.
• Regulatory Standardisation: Provides uniformity and legal clarity for clinics and surrogacy arrangements across India.
• Balances Reproductive Rights and Health Risks: Women beyond 50 and men beyond 55 face higher risks of medical complications, genetic abnormalities, and age-related fertility decline.
• Supports Policy Goals of Responsible Parenthood: Reinforces the idea that reproduction – natural or assisted – should happen within a responsible age window for the well-being of both child and parents.

Arguments Against Age Limit for Intending Parents

• Violation of Reproductive Autonomy: The age restrictions infringe on the fundamental right to reproductive choice under Article 21 of the Constitution (Right to Life and Personal Liberty).
• Arbitrary and Inflexible Limits: The fixed age cutoffs do not account for individual health status, biological variations, or advances in medical science.
• Excludes Late Marriages and Second Marriages: With changing social trends, many people are marrying or remarrying later in life, the age limits unjustly exclude such couples.
• No Similar Restrictions in Natural Conception: The State does not restrict couples from naturally conceiving children at older ages, yet imposes age restrictions only on ART and surrogacy, which raises concerns of unjustified interference.

Way Ahead

• While age limits under the ART and Surrogacy Acts aim to ensure medical safety and child welfare, a more balanced, rights-based approach is needed.
• The law could adopt a flexible, case-by-case evaluation based on medical fitness, psychological readiness, and social support systems.
• This would uphold reproductive autonomy, align with constitutional rights, and reflect evolving social and medical realities.