HC says surrogacy using donor gametes can’t be prohibited as a condition in consent form 

HC says surrogacy using donor gametes can’t be prohibited as a condition in consent form 

Subject: Polity

Section: Laws in news

Context:

• The High Court of Karnataka observed that disallowing surrogacy using donor gametes as a condition in the consent form for seeking permission to undergo the process is contrary to the Surrogacy (Regulation) Act, 2021.

What is Surrogacy?

• Surrogacy is an arrangement in which a woman (the surrogate) agrees to carry and give birth to a child on behalf of another person or couple (the intended parent/s).
• A surrogate, sometimes also called a gestational carrier, is a woman who conceives, carries and gives birth to a child for another person or couple (intended parent/s).

Altruistic Surrogacy:

• It involves no monetary compensation to the surrogate mother other than the medical expenses and insurance coverage during the pregnancy.

Commercial Surrogacy:

• It includes surrogacy or its related procedures undertaken for a monetary benefit or reward (in cash or kind) exceeding the basic medical expenses and insurance coverage.

What is the Surrogacy (Regulation) Act, 2021?

Provisions:

• Under the Surrogacy (Regulation) Act, 2021, a woman who is a widow or a divorcee between the age of 35 to 45 years or a couple, defined as a legally married woman and man, can avail of surrogacy if they have a medical condition necessitating this option.
• The intended couple shall be a legally married Indian man and woman, the man shall be between the ages of 26-55 years and the woman shall be between the ages of 25-50 years, and shall not have any previous biological, adopted, or surrogate child.
• It also bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs.
• The law allows only altruistic surrogacy where no money exchanges hands and where a surrogate mother is genetically related to those seeking a child.

Challenges:

• Exploitation of the Surrogate and the Child: The banning of commercial surrogacy moves from the rights-based approach to a needs-based approach, thus removing the women’s autonomy to make their own reproductive decisions and right to parenthood. One could argue that the state must stop the exploitation of poor women under surrogacy and protect the child’s right to be born. However, the current Act fails to balance these two interests.
• Reinforces Patriarchal Norms: The Act reinforces traditional patriarchal norms of our society that attributes no economic value to women’s work and, directly affecting the fundamental rights of the women to reproduce under Article 21 of the constitution.
• Emotional Complications: In altruistic surrogacy, a friend or relative as a surrogate mother may lead to emotional complications not only for the intending parents but also for the surrogate child as there is great deal of risking the relationship in the course of surrogacy period and post birth.
• Altruistic surrogacy also limits the option of the intending couple in choosing a surrogate mother as very limited relatives will be ready to undergo the process.
• No Third-Party Involvement: In an altruistic surrogacy, there is no third-party involvement. A third-party involvement ensures that the intended couple will bear and support the medical and other miscellaneous expenses during the surrogacy process.
• Overall, a third party helps both the intended couple and the surrogate mother navigate through the complex process, which may not be possible in the case of altruistic surrogacy.
• Some Exclusion from Availing Surrogacy Services:
• There is exclusion of unmarried women, single men, live-in partners, and same-sex couples from availing surrogacy services.