Surrogacy is considered altruistic when the surrogate offers to carry the child of the commissioning couple in her womb purely out of love for them and empathy for their need to have a child.

When money is paid to the surrogate for her services, it is taken as an act of commercialisation. Such commercialisation has been causing incalculable grief to Indians for a long. It is to be noted that many countries around the world do not allow the practice of surrogacy.

People are still trying to wrap their heads around the surrogacy law, introduced in 2022 to end ‘the practice of hiring wombs’ in India. The law covers a lot of ground, parts of which are new and radical. However, central to the law is the provision that intending couples would now have to go through court for contracting a surrogate.

The court intervention, experts say, may put an end to the profiteering and racketeering rampant in surrogacy, and also an end to cheating and exploitation of the participants that takes place in the arrangement.

Incidentally, the Indian Council of Medical Research had in 2005 come up with a set of guidelines for the conduct of surrogacy. Later in 2010, the government put more curbs on the Assisted Reproductive Technology (Regulation) Bill.

The 2022 law, in fact, arches over both.

What are the eligibility criteria for couples?

Under the new law, the commissioning parents, i.e., the couple who wish to have a child through surrogacy, have first to approach a government medical board, consisting of obstetricians, paediatricians, and other specialists.

The woman and man in such a case have to be between 25 and 50 years of age. They should not have had a child, either naturally conceived, adopted, or born out of surrogacy. They should also have with them a clear medical and radiological report, and sometimes if asked specifically, a report that also clears them of genetic anomalies.

Furthermore, the couple should have an insurance policy for the surrogate mother to cover her medical needs for 36 months from the date of embryo transfer. Once the board validates the couple’s submission, an essentiality certificate is issued to them.

The certificate then has to be submitted to the court of a first-class judicial magistrate for a suitable order. The order would serve as the proof of birth for the child born of surrogacy, and so also enable the commissioning couple to register their child in the municipality concerned.

Who is eligible to be a surrogate?

As required by the law, the surrogate has to be eligible too. She has to be between 25 and 35 years of age; be married with a child of her own. She should also be a first-time surrogate. Furthermore, a psychiatrist has to certify her as being mentally fit.

Once the couple and the surrogate have obtained their eligibility certificates, they can approach an Assisted Reproductive Technology (ART) centre for the embryo transfer.

The law also says the surrogate and the couple would have to have their Aadhaar cards linked. It would help make the biometrics of the persons in the arrangement traceable, thereby reducing the scope of malpractice significantly.

How does the law address commercialisation of surrogacy?

The sense of the law is that the practice of surrogacy has to be altruistic in nature. Hence, it has banned commercialisation of the surrogacy.

  • No one can sell or buy human embryos and gametes.
  • No one can sell or buy the services of a surrogate.
  • Furthermore, no payment, reward, benefit, fees, renumeration, or inducement can be offered to the surrogate, her dependents, or her representative.

Also, the law has banned the export of embryos to foreign countries. Even transferring embryos between labs or between ART centres requires the permission of the appropriate authorities. Those caught violating the ban will be fined and jailed for up to 10 years.

Some of the other nuances of the law are:
  • The Indian marriage act recognises only marriage between heterosexual individuals. Hence, gay couples cannot employ surrogacy to have a child.
  • The surrogate, once she has entered into the contract, cannot refuse to carry the pregnancy to term. She cannot terminate her pregnancy without permission from the appropriate authority.
  • The law says the embryo should be genetically related to the couple, either to the man or to the woman or both. Embryo donation is not allowed in surrogacy.
  • The law grants a divorcee or a widow to offer her eggs for surrogacy, on the condition that she is between 35 and 45 years of age.
  • If a couple from India utilises the services of a surrogate outside the country, the child born of such an act will not be recognised as an Indian citizen.
  • If the commissioning couple dies before the child is born, the onus of raising the child falls on the nominees of the couple appointed at the time of signing the surrogacy contract. The nominees would have to bear the responsibility of the newborn child. However, at a later point, if they so wish, the nominees can give up the child for adoption or to an orphanage.
  • The children so born can claim the right to know they were born of surrogacy when they turn 18. They can also exercise their right to trace the identity of the surrogate mother.

Dr. Patta Radhakrishna is chief surgical gastroenterologist, SIMS; Dr. Vidya Mohanram is chief anaesthesiologist, Fortis Malar Hospital; and Dr. Magnus Mansard is senior surgical gastroenterologist, SIMS

(The writers have Dr. Hitesh Bhatt and Dr. PM Gopinath to thank for their inputs)

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