Paper: GS – II, Subject: Polity, Topic: Judiciary, Issue: Surrogacy (Regulation) Act, 2021.
Context:
The Supreme Court is reviewing Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021, which bans couples with one child from using surrogacy to have another child.
Key Takeaways:
What the Supreme Court is Examining:
- The SC is reviewing whether the ban on surrogacy for couples who already have one child: violates reproductive choices, unfairly discriminates against couples with secondary infertility.
- The Legal Provision Under Challenge Section 4(iii)(C)(II) of the Surrogacy (Regulation) Act, 2021 allows surrogacy only for: married couples without a living child.
- Exception: Couples with a child who is: mentally or physically challenged, suffers from a life-threatening, incurable disorder.
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.
Conclusion:
The Supreme Court’s decision to review the surrogacy ban on couples with one child is a crucial development in the ongoing debate about reproductive rights in India. The court’s ruling will have a significant impact on the lives of many couples and will shape the future of surrogacy regulation in the country.
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