Is surrogacy legal in India?

"If you have the power to make someone happy, do it...the world needs more of that."

—Germany Kent

A woman – is a person who can do everything, right from giving birth to taking care of the child, household to exceling in her academics and office. And like we all know woman is one of the most blessed human beings on earth because she can give birth to a baby, but even if she can’t she is still the best because she always is the care giver in a family (most of the times). It is always seen that a woman is always expected to be able to bear child and give an heir to the family she is married into. But what if she is unable to bear a child? Then are you going to throw her away or get married a second time? Well, these were the available options earlier but with changing times and development of technology, the alternatives for natural birth are also increasing. Now we have options like adoption, surrogacy, IVF, Test Tube babies, so on and so forth. 

And as we get to know that what are the available options that a woman and a couple has in order to conceive a child, let’s have a quick look at what is surrogacy and some other general perception about it before getting to know whether surrogacy is legal in India or not.

Surrogacy in India has become a promising option for couples struggling to start their own families. Couples who have been married for a long time and who are unable to conceive due to a medical condition may decide to move to an obstetric treatment if they have failed in other infertility treatments such as IUI and IVF. The frequency of reproductive cases varies from state to state and state in the Indian context. Based on a report released by the World Health Organization (WHO), it is believed that many infertile couples around the world are diagnosed with infertility problems. 

Primary Infertility refers to the number of women who have never been pregnant. The report also revealed that second birth can be seen by women at any time in their lives even after a successful first pregnancy. The reasons for the increase in fertility rates in India are certain avoidable aspects of lifestyle that may affect male and female fertility rates in India. A staggering 45 percent of couples struggle with infertility and the same reason is not limited to women. The essence of the story is that it takes two people for a successful pregnancy and one person, whether a man or a woman cannot be blamed for problems related to infertility.

Now, that we know what is the scenario regarding surrogacy in India, let’s also understand what is Surrogacy and it’s types before knowing about it’s legalities. 

What is Surrogacy?

Surrogate Pregnancy involves a woman agreeing to bear someone else's child. After the birth of a child, the birth mother gains the right to live and care for the intended parent or parents. Surrogacy has complex legal and medical measures to be met. It is important to monitor the process, seek professional advice and build support networks.

Well, it does not just here, as there are many different types of Surrogacy as well.

• Altruistic (non-commercial) surrogacy: The birth mother does not receive payment. Although some states allow reasonable reimbursement of medical expenses for the mother of the respondent.

• Traditional Surrogacy: The surrogate mother donates her egg, which is fertilized by the sperm of the father. Since the baby is naturally the surrogate mother's child, there may be future issues related to the child's future right to information about his or her identity. Thus Traditional Surrogacy may be banned in most states and territories. Therefore, it is also possible to practice traditional surrogacy through an overseas clinic.

• Commercial Surrogacy: This includes the birth mother who receives payment or material gain in favour of giving birth. It is illegal to pay a third party company to arrange for acquisition and advertising to the adoptive parent or the authorized parent is usually not permitted.

While we are talking about Surrogacy it is also extremely important to talk about Gestational Surrogacy which is also called as IVF (In Vitro Fertilization).

Gestational Surrogacy- The procedure called “In Vitro Fertilization” (IVF) now makes it possible to collect eggs from the mother (or donor egg), fertilized by sperm from the father (or donor sperm), and implant the foetus in her mother's womb. The surrogate mother then carries the baby until it is born. 

They have no genetics in the baby because it was not their egg that was used. The Gestational surrogates are called as "birth mother" but logically the birth mother is still the woman whose egg was fertilized for the process. 

In the U.S., Gestational surrogacy is not so legal. That is because both target parents have genetic responsibilities toward the child. As a result, pregnancy is more common than the traditional healer. And about 750 babies are born each year through the process of Gestational Surrogacy.

Let’s also have a quick look at the different procedures used in Gestational Surrogacy:

• The embryo is produced from the sperm of the would be father and egg of the would be mother; 

• The embryo is produced using the sperm of the would be father and a donor egg; 

• The embryo is produced using would be mother's egg and a donor sperm; 

• The donating embryo is passed on to the other person. Such an embryo may be acquired when others undergo IVF and have embryos implanted in others. The resulting child is not genetically related to the target parent(s).

And last but not the least this eventually brings us to the question whether Surrogacy is legal in India or not?

Traditional surrogacy has failed to gain official recognition in India. This basically shows that the standard acquisition process is not allowed in India. In fact, it is against the law. On the other hand, Gestational Surrogacy, also known as surrogacy host, was first implemented in 1986. The whole process begins with the conception of a foetus using IVF (in vitro fertilization) technology, which is implanted in your spouse. In India, Gestational surrogacy is the only form of surrogacy allowed. Surrogacy is a hotly debated issue in the world. This practice is linked to a number of social, moral, and legal concerns. The law / legal status differs from country to country when it comes to official status. 

Thus, one can see that the traditional surrogacy in India is not legal but if one opts for the Gestational Surrogacy then it is fine, and they have to face legal charges for doing something out of the law, as Gestational Surrogacy in India is legal. And one should also keep in mind that Surrogacy in India is governed by the recommendations of the ICMR (Indian Council of Medical Research) or decisions issued by the Supreme Court or the High Courts. Pregnant mothers suffer from this legal gap, as they cannot claim any rights before the courts or any other official.

So, whatever you decide, decide carefully only after taking into consideration all the pros and cons of a specific decision.

Ref: Surrogacy | Pregnancy Birth and Baby (pregnancybirthbaby.org.au)

Surrogate Mothers: What It Is and How Does Surrogacy Work (webmd.com)

 (vinsfertility.com)

Surrogacy provisions in India (indiatimes.com)