Surrogacy

WHY IN NEWS?

The Supreme Court allowed a woman with Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome, a condition that prevents her from producing eggs, to undergo surrogacy using a donor egg.

WHAT IS SURROGACY?

Surrogacy is an important method of assisted reproductive technology wherein a woman carries pregnancy for another couple.

WHO MAY OPT FOR SURROGACY?

People may opt for surrogacy in any of the following or other situations:

1. When a woman is infertile or cannot carry a pregnancy to term.
2. When a woman who underwent a hysterectomy or has a uterine malformation or recurrent of frequent loss of pregnancy.
3. When a woman has a medical condition that makes it dangerous to become pregnant or when a woman is fertile but not willing to undergo pregnancy.

TYPES OF SURROGACY:

From an economic perspective, surrogacy agreements can be classified into two categories:

1. Altruistic surrogacy
2. Commercial surrogacy

When it comes to the way the embryos are created, there are two main types:

1. Traditional surrogacy
2. Gestational surrogacy

In total there are six different types of surrogacy arrangements:

1. Gestational surrogacy with own gametes
2. Gestational surrogacy with donated eggs
3. Gestational surrogacy with donated sperm
4. Gestational surrogacy with donated embryo
5. Traditional surrogacy
6. Traditional surrogacy with donated sperm

SURROGACY (REGULATION) ACT, 2021:

The Surrogacy Act of 2021 is a legal framework that regulates surrogacy in India.

The Acts allow only married infertile couples and certain categories of women to avail of ARTs and surrogacy.

Sale of gametes and any payment to the surrogate mother, other than insurance coverage and medical expenses, has been prohibited.

Clinics and banks offering ART procedures have to be registered.

KEY PROVISIONS:

The Surrogacy Act of 2021 in India contains several key provisions to regulate surrogacy in the country. Some of the main provisions include:

1. Eligibility Criteria for Intended Parents:

The act defines the eligibility criteria for intended parents who wish to engage in surrogacy. For example, a couple must be married for at least five years and be Indian citizens.

2. Eligibility Criteria for Surrogates:

The act sets criteria for surrogate mothers. They should be a close relative of the intended parents, married, and have at least one child of their own.

3. Altruistic Surrogacy:

Commercial surrogacy is prohibited. Surrogacy can only be altruistic, meaning that the surrogate mother cannot receive any monetary compensation beyond medical expenses and insurance coverage.

4. National and State Surrogacy Boards:

The act establishes a National Surrogacy Board and State Surrogacy Boards to oversee and regulate surrogacy arrangements. These boards are responsible for granting certificates to intended parents and surrogates.

5. Gestational Surrogacy Only:

The act allows only gestational surrogacy, where the surrogate mother is not genetically related to the child she carries. Traditional surrogacy, where the surrogate is genetically related to the child, is not permitted.

6. Rights and Obligations:

The act outlines the rights and obligations of all parties involved in surrogacy, including the intended parents, surrogate mother, and the child born through surrogacy.

7. Insurance Coverage:

The act requires that the surrogate mother is provided with comprehensive insurance coverage for the duration of the surrogacy arrangement to cover any medical complications.

8. Abandonment and Termination:

The act addresses issues related to the abandonment of the child and the conditions under which the surrogacy arrangement can be terminated.

Section 2(r) AND 4 of surrogacy act?

An ‘intending couple’ is defined in Section 2(r) of the Act as a couple who intend to become parents through surrogacy and there is medical evidence that necessitates gestational surrogacy. The married couple should be between the age of 23 to 50 for females and 26 to 55 for males.

As per Section 4, a surrogacy procedure shall only be conducted if the intending couple or intending woman has a certificate of essentiality and the surrogate mother has a certificate of eligibility.

SURROGACY (REGULATION) RULES 2022:

The Central Government has notified Surrogacy (Regulation) Rules, 2022 which provides Form and manner for registration and fee for a surrogacy clinic and the requirement, and qualification for persons employed, at a registered surrogacy clinic.

Rule 14(a) of the Surrogacy (Regulation) Rules, 2022?

According to Rule 14(a) a woman may opt for gestational surrogacy, if she has no uterus or an abnormal uterus.

BABY MANJI YAMADA Vs UNION OF INDIA, 2008:

The case revolves around a baby named Manji Yamada who was born by way of surrogacy, where the actual parents were of Japanese origin whereas the surrogate mother (GESTATIONAL SURROGATE) was of Indian origin.

This case is revolutionary as it highlights the lack of surrogate laws in India and provides an alternative for the same. The case defines different types of surrogacy practised in India.

GLOBAL COMPARISION OF SURROGACY LAWS:

1. While countries like Britain, America, Australia, the Netherlands and Denmark are among those where altruistic surrogacy is legal, countries such as France, Germany, Italy, Spain, Portugal and Bulgaria prohibit all forms of surrogacy.
2. Armenia, Georgia, Kazakhstan, Russia, Ukraine allow both altruistic and commercial surrogacy.
3. Kenya, Malaysia and Nigeria do not prohibit surrogacy but have no formal law to regulate the practice.
4. The Czech Republic, Colombia, Chile and Hungary are among countries with unregulated surrogacy.

In Britain:

1. Commercial Surrogacy is not legal in the United Kingdom.
2. The surrogate is the child’s legal parent at birth. Legal parenthood can be transferred by parental order or adoption only once the child is born.

In USA:

1. The surrogacy laws vary from state to state.
2. Surrogacy friendly states allow both commercial and altruistic surrogacy. Arkansas, California, New Hampshire are some such surrogacy-friendly states.
3. New York does not allow commercial surrogacy and Michigan forbids absolutely all surrogacy agreements.

In Canada:

Canada’s Assisted Human Reproduction Act permits only altruistic surrogacy. Surrogate mothers may be reimbursed only for approved expenses.

MAYER ROKITANSKY KUSTER HAUSER SYNDROME:

Mayer Rokitansky Kuster Hauser Syndrome (MRKHS) (also referred to as Mullerian aplasia) is a rare congenital disorder that occurs in females and mainly affects the reproductive system (with an incidence of 1 in 5000 females).

1. This condition is characterized by an underdeveloped vagina and uterus.
2. The uterus may be small or absent and the vagina is typically shortened.
3. People with MRKH have normally-functioning ovaries and a female chromosome pattern.