GS Paper I & II

News Excerpt: 

There is a rise in numbers of privileged Indians traveling abroad for surrogacy due to change in surrogacy rules.

More About the News: 

• This decision has once again sparked the debate of Choice vs. Right. 
• The distinction between a "choice" and a "right" in family-making reflects patriarchal notions of bloodline purity. 
• While both surrogacy and adoption should be considered as equal choices, there shouldn't be an implied disparity in their status or recognition.

What is surrogacy:

• According to The Surrogacy regulation Act Surrogacy is defined 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. 
• There are two main types of surrogacy: 
• Traditional surrogacy, where the surrogate mother is biologically related to the child, and 
• Gestational surrogacy, where the child is not biologically related to the surrogate.

Who can avail of surrogacy: 

• Under the Surrogacy (Regulation) Act, surrogacy is permissible for couples with proven infertility or disease, or for altruistic purposes. 
• The eligibility criteria for couples include being married for at least five years, meeting age requirements, and not having any living child (biological, adopted, or surrogate), except in specific cases such as children with disabilities or life-threatening disorders.

Who can be a surrogate: 

• A surrogate mother must be a close relative of the intended couple, a married woman with at least one child of her own, aged between 25-35 years, and having been a surrogate only once in her life. 
• She must also possess a certificate of medical and psychological fitness for surrogacy.

Who regulates surrogacy : 

• The Surrogacy (Regulation) Act regulates surrogacy in India. 
• The Act provides for the constitution of National Surrogacy Boards (NSB) and State Surrogacy Boards (SSB), tasked with enforcing standards for surrogacy clinics, investigating breaches, and recommending modifications. 
• Surrogacy clinics must apply for registration and adhere to regulations set forth by these boards.

Why couples are going overseas: 

• Why is the law compelling couples to go overseas:
• The Surrogacy (Regulation) Act of 2021 in India prohibits commercial surrogacy and only allows altruistic arrangements under strict eligibility criteria, such as married couples or ever-married single women (widowed or divorced). 
• Additionally, the law mandates that the intending parents must use their own gametes for gestational surrogacy, excluding the possibility of using donor gametes. 
• These stringent regulations make it challenging for many couples to pursue surrogacy within India, leading them to seek options abroad where surrogacy laws may be more permissive or where commercial surrogacy is legal.
• Where are surrogacy providers: 
• Surrogacy providers are often located in countries where surrogacy laws are more flexible or where commercial surrogacy is permitted. 
• Popular destinations for surrogacy include the United States, Canada, Ukraine, Russia, and some Southeast Asian countries. 
• What about citizenship status of the child: 
• Regarding the citizenship status of the child born through surrogacy, it varies depending on the country where the surrogacy takes place and the citizenship laws of the intended parents' home country. 
• In the United States, for example, if a child is born to surrogate parents who are citizens or legal residents of the United States, the child typically receives U.S. citizenship automatically. 
• Similarly, in other countries, the child's citizenship status may be determined by factors such as the nationality of the intended parents, the surrogate mother's citizenship, and the laws governing surrogacy in that country. 
• Benefits of US Surrogacy: 
• Despite the high cost, many Indian couples choose the US for surrogacy due to well-defined laws, options for genetic parentage, gender selection, and the possibility of the child obtaining US citizenship, which can be advantageous for education and other opportunities.

Legal & Social Challenges: 

• Social Challenges: Surrogacy in India intersects and challenges the deeply entrenched socio-cultural norms and perceptions surrounding family, parenthood, and reproductive rights. 
  • Traditional notions of kinship and bloodline purity often clash with modern conceptions of family diversity and reproductive autonomy. 
  • Cultural stigmas and biases against infertility can further exacerbate the challenges faced by individuals seeking surrogacy as a means of family-building. 
  • Moreover, surrogacy arrangements may challenge existing social hierarchies and gender roles, prompting broader debates about gender equality and social justice.
• Legal Restrictions on Surrogacy: 
  • The Surrogacy (Regulation) Act of 2021 in India permits surrogacy only for married couples, widows, or divorcees aged 35 to 45. 

• • Single women, including those who have never been married, are excluded from this legal framework. 

• This exclusion is perceived as discriminatory and reflects societal biases against single women.
• Contested Eligibility Criteria: 
• The focus on marital status as a determining factor for eligibility in surrogacy is being challenged in the Supreme Court through various petitions. 
• Critics argue that this exclusionary approach fails to address the reproductive rights of single individuals, same-sex couples, and non-married couples.
• Systemic Discrimination: 
• The discrimination against single women extends beyond surrogacy laws to various aspects of reproductive rights and choices. 
• Laws and regulations often privilege married individuals, while single women face barriers in accessing reproductive healthcare services, including safe abortions.
• Barriers to Safe Abortions: 
• The Medical Termination of Pregnancy Act, even after amendment, does not explicitly address the needs of single women seeking abortions. 
• This lack of clarity leads to obstacles in accessing safe abortion services, as some healthcare providers require consent from husbands or family members.
• Stigma and Traditional Notions: 
• The stigma against single motherhood is rooted in traditional ideas about the family structure and the perceived need for children to have fathers. 
• However, these notions overlook the capabilities of single women and queer couples to provide a nurturing environment for children.
• Advocacy for Inclusive Policies: 
• There's a call for a shift in the assessment of the welfare of the child, moving away from the traditional emphasis on the presence of a father to a focus on supported parenting. 
• This would benefit not only single women but also queer couples and non-traditional families, aligning with the evolving understanding of family dynamics and parental responsibilities.

Criticisms:

• Exploitation of Surrogate Mothers: One of the most significant criticisms of surrogacy in India is the potential exploitation of surrogate mothers, particularly those from economically disadvantaged backgrounds. 
• Critics argue that these women may be coerced or financially incentivized to become surrogates, often without fully understanding the risks or implications involved. 
• They may lack adequate legal protections and access to healthcare, leading to concerns about their well-being during and after pregnancy.
• Commercialization and Commodification: Despite regulations prohibiting commercial surrogacy, concerns persist about the commodification of women's bodies and reproductive capacities. 
• The profit-driven nature of surrogacy arrangements may prioritize financial gain over the welfare of surrogate mothers and children. 
• Critics argue that the surrogacy industry may perpetuate inequalities and reinforce power dynamics that exploit vulnerable populations.
• Ethical Considerations & Dilemmas: Surrogacy raises complex ethical dilemmas, particularly regarding the rights and interests of all parties involved. 
• Questions arise about the autonomy and agency of surrogate mothers, the genetic connections between intended parents and children, and the psychological impact on all individuals within the surrogacy arrangement. 
• Ethical considerations also extend to issues of genetic selection, ownership of embryos, and the long-term implications for children born through surrogacy.
• Regulatory Challenges: While attempts have been made to regulate surrogacy in India, the legal framework remains fragmented and inconsistent. 
• Critics argue that existing regulations may be inadequate to address the evolving complexities of surrogacy practices, leading to loopholes and ambiguities that can be exploited.
• Globalization and Transnational Surrogacy: The globalization of surrogacy has raised concerns about legal jurisdiction, cross-border exploitation, and disparities in regulatory standards. 
• Critics argue that the outsourcing of surrogacy to countries with lax regulations may exacerbate inequalities and ethical dilemmas. 
• Transnational surrogacy arrangements may also pose challenges related to citizenship, nationality, and the legal recognition of parental rights, particularly for children born through international surrogacy.

Way forward: 

• Surrogacy in India remains a multifaceted issue that transcends legal, ethical, and socio-cultural boundaries. 
• It is imperative for policymakers, healthcare professionals, and civil society to collaborate in shaping a more inclusive and ethically responsible approach to surrogacy that respects the rights and dignity of all individuals involved. 
• Only through concerted efforts India can navigate the complexities of surrogacy and ensure that reproductive technologies are used in a manner that promotes justice, equity, and human flourishing.