Context: Delhi High Court seeks an explanation from the Centre about the discrimination that emerges from the Assisted Reproductive Technology (Regulation) Act, 2021 and the Surrogacy (Regulation) Act, 2021 which ban all forms of commercial surrogacy in India. 

ASSISTED REPRODUCTIVE TECHNOLOGY (REGULATION) ACT, 2021

Need for Amendment

• India has become one of the major centres of global fertility industry over the years due to revolutions in Assisted reproductive technologies. The reproductive segment of the Indian medical tourism market is valued at more than $450 million a year. 
• Though Assisted Reproductive Technologies have given hope to many persons suffering from infertility, but it also has introduced a plethora of legal, ethical and social issues. Despite this, there are only guidelines, and no law exists to regulate ART in India.
• Select Committee on the Surrogacy (Regulation) Bill, 2019, has recommended that ART Bill should be brought before the Surrogacy (Regulation) Bill,2019, so that all the highly technical and medical aspects could be addressed adequately in the Surrogacy (Regulation) Bill, 2019. 

Salient Features of the ART(Regulation) Act, 2021

• Definition: The act defines ART to include all techniques that seek to obtain a pregnancy by handling the sperm or the oocyte (immature egg cell) outside the human body and transferring the gamete or the embryo into the reproductive system of a woman. Ex:  gamete (sperm or oocyte) donation, in-vitro-fertilisation and gestational surrogacy.
• Regulation of ART clinics and banks: Every ART clinic and bank must be registered under the National Registry of Banks and Clinics of India. The registration will be valid for 5 years and can be renewed for a further five years and it can be cancelled if the entity contravenes the provisions of the act. 

Conditions for offering ART services: 

• Age requirement for gamete donor- for male (21 to 55 years) and for female (23-35 years)
• A woman can donate egg only once in her lifetime and should be a married having at least one alive child of her own.

Conditions for seeking ART services:

• Only infertile married couple or single women (Indian or foreign) can seek ART services.
• The party seeking ART services will be required to provide insurance coverage in the favour of the egg donor.
• Mandatory checking for genetic diseases before the embryo implantation.

Offences: 

• Selling or purchasing of gametes 
• Abandoning children born through ART 

Concerns with the Act

• The act excludes same-sex couples, live-in couples and individuals belonging from the LGBTQ+ community from accessing ARTs.
• Eligibility criteria of egg donors is very restrictive.
• The act requires ART clinics and banks to share information about the commissioning parties and donors with the National Registry. Sharing of this information may violate the right to privacy of parties.
• The acts, ART act and surrogacy, contain different provisions on regulation of clinics based on whether they provide surrogacy or other ART procedures. This leads to overlap in the regulation of surrogacy services and other ART services. 

THE SURROGACY (REGULATION) ACT, 2021

Salient Features 

• Definition: The act defines surrogacy as a practice where a woman gives birth to a child for an intending couple with the intention to hand over the child after the birth to the intending couple. 
• Regulation of surrogacy: The act allows only altruistic surrogacy, which involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy. 
• Eligibility criteria for intending couple: Surrogacy is permitted only for those intending married Indian couples who suffer from proven infertility. 

Eligibility criteria for surrogate mother: 

• Surrogate mother must be a close relative of the intending couple.
• Surrogate mother needs an eligibility certificate issued by the appropriate authority as mentioned in the act.   
• A married woman having a child of her own and between the age of 25 to 35 years on the day of implantation.  
• A woman cannot act as a surrogate mother by providing her own gametes. 
• A woman cannot act as a surrogate mother more than once in her lifetime.  

Parentage and abortion of surrogate child: 

• A child born out of a surrogacy procedure will be deemed to be the biological child of the intending couple.
• An abortion of the surrogate child requires the written consent of the surrogate mother and the authorisation of the appropriate authority.
• Regulation of surrogacy clinics: Surrogacy clinics are mandated to get registered by the appropriate authority. The central and the state governments shall constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively to advice govt on policy matters relating to surrogacy and laying down code of conduct for surrogacy clinics. 

Concerns

• Deny this opportunity to LGBTQ+ persons, live-in couples and single parents.
• Altruistic surrogacy is paternalistic and doesn’t respect the bodily autonomy of women. It expects a woman to go through the physical and emotional tolls of surrogacy free of cost and only out of ‘compassion’.
• Blanket ban on commercial surrogacy may lead to creation of unregulated, exploitative underground/black markets.
• The act didn’t define ‘close relative’, which is a condition to be fulfilled by the surrogate mother.
• Restricting surrogacy option to intending couple denies reproductive liberty to them.
• Intending couple don’t have final say in the consent to abort a surrogate child, even if the child being born out of surrogacy arrangement is at the risk of physical or mental abnormalities.
• The eligibility criteria for surrogate mother are irrational, unlawful, discriminatory, and violative of her fundamental rights under Articles 14 (right to equality) and 21 (right to life) of the Constitution.
• A widowed women with age above a certain level is medically not advisable to use her own gametes denying her the chance to have a child.

Way Forward

The petitioners before the Delhi High Court have drawn attention to certain limitations of the existing acts. These limitations warrant a thorough examination. It is essential that, in the process of addressing the exploitation of surrogate mothers, the act should be revised to establish a comprehensive and inclusive procedure. This revised procedure should aim to make surrogacy readily accessible to the deserving citizens of India.