What is Surrogacy? A Complete Guide to who should opt, how to proceed and legal status in India
Surrogacy is a process or method of aided reproduction where parents opt for a gestational surrogate who carries and cares for their baby(ies) until birth. In simpler terms, surrogacy is wherein another woman offers to carry a baby to term for a couple. The child is then given to the intended parent/parents post-birth.
Kinds of Surrogate Mothers
There are two kinds of surrogate mothers:
- Gestational Surrogates: A method known as in-vitro fertilization (IVF) is used in gestational surrogates, where eggs gathered from the mother are fertilized with the sperm of the father, and the embryo is then inserted into the uterus of the gestational surrogate. The surrogate mother then carries the baby till birth. Gestational surrogates do not have any genetic ties to the baby as their eggs have not been used; the gestational surrogate is termed as the birth mother, and the biological mother is the woman whose egg has been fertilized.
- Traditional surrogate: A female who is artificially inseminated with a male’s sperm is termed as a traditional surrogate. Here, the biological mother will be the traditional surrogate as it is her eggs that have been used for fertilization of the embryo. Donor sperms can also be used.
Who Can Use Surrogates
A woman may consider surrogacy as an option for several reasons:
- Medical problems with her uterus.
- Conditions such as severe heart disease that make pregnancy risky or impossible for her.
- When assisted-reproduction techniques, such as IVF have failed.
Surrogacy has also enabled parenthood to be an option for individuals who cannot adopt a child for various reasons. Gay men can also use traditional surrogates, whereby using artificial insemination, one of them can use their sperm to fertilize the surrogate’s egg.
Finding a Surrogate
There are various ways to look for a surrogate mother:
- Friends or family: Individuals can sometimes ask a relative or a family member to be a surrogate for them. Though controversial, this method is simpler than the complex legal issues related to parental rights and the high cost of surrogacy since a trusted family relationship is easier to handle.
Note: Certain family ties are acceptable for surrogates as long as the child does not carry the same genes of both parents (for example, the biological mother being the sister and the biological father is the brother of the biological mother).
- A surrogacy agency: Surrogacy agencies help individuals look for gestational surrogates. Once a surrogate has been identified, these agencies make all the necessary arrangements and collect the required fees passed between the parents and the surrogate, such as the surrogate’s medical expenses.
How to Choose a Surrogate
There are not many regulations as to who can be a surrogate mother currently; however, based on views from experts, the following points should be taken care of when trying to identify a surrogate:
- Ensure that the surrogate is at least twenty-one years of age.
- Check if the woman has given birth to at least one healthy child earlier so that she can understand the medical risks of pregnancy and childbirth.
- Arrange for a mental health screening of the woman you have identified as the potential surrogate by a trusted mental health professional.
- Sign a contract about the surrogate’s role and responsibilities during the pregnancy, such as prenatal care and agreeing to give the baby post-delivery.
- It is recommended that the surrogate is checked for infectious diseases, such as gonorrhea, syphilis, HIV, cytomegalovirus, chlamydia, and hepatitis B and C.
- It is also recommended to arrange for a medical procedure to “map” the uterus visually; this helps the doctor to identify the surrogate’s potential to carry a pregnancy.
A brief overview – In a typical gestational surrogacy arrangement, intended parents create embryos through in vitro fertilization (IVF). One or more of these embryos is implanted in a surrogate, who carries the child or children to term, but has no genetic relationship to them. This makeup the vast majority of modern surrogacy arrangements. Depending on the situation, an egg donor may be needed
Cost of Surrogacy in India
The price of surrogacy in India varies between twelve to fifteen lakh INR; this amount is substantially low as compared to other countries. The compensation for surrogate mothers depends on their age, health, experience, and location. Experienced surrogates charge more; similarly, a surrogate mother’s compensation in Delhi is generally more than a surrogate who lives in Bengaluru or Mumbai.
Photo credit- economictimes.com
Eligibility Criteria for Surrogacy in India
As per the Indian Council of Medical Research (ICMR) 2010 regulations and The Ministry of Home Affairs, a bill has been passed to use surrogacy services in India:
The ICMR Assisted Reproductive Technology (ART) Bill 2010 states the following:
- Surrogacy by ART can be opted only by patients for whom it is medically or physically impossible to carry a baby to term.
- Couples or individuals can avail of the services of a surrogate mother through an ART bank.
- The individual(s) who have opted for a surrogate mother’s services are bound legally to receive the custody of the child regardless of any anomaly that the child may have, and the denial to do the same is considered to be an offense.
- An individual or a couple cannot avail of the services of more than one surrogate mother at any time.
- A couple cannot have an immediate transfer of embryos in a surrogate.
Legal Status of Surrogacy in India
India had once been the go-to destination for surrogacy, however, in the year 2015, India was no longer an option for surrogacy as the Indian government introduced new regulations in the surrogacy process. Today, according to Indian surrogacy laws, it is illegal for intended parents from abroad to opt for a surrogacy process in India. Currently, the only people who can opt for surrogacy in India are Indian intended parents and those who have been married for a minimum of five years.
The prohibition on foreign intended parents in the year 2015 was only the beginning of the legislation regulating surrogacy. After almost two years of debate, in December 2018, an Indian surrogacy law was passed that:
- Makes commercial surrogacy an illegal process in India.
- Allows only altruistic surrogacy for infertile Indian couples who desire to become parents.
- Requires intended parents to be married for a minimum of five years.
- Requires that the intended parents have a doctor’s certificate of their infertility.
- Requires that the intended parents have no surviving child, either adopted or biological, except if the surviving child suffers from a life-threatening disorder with no cure or a physical or mental disability. Such a situation needs to be confirmed with a medical certificate from a district medical board.
- Restricts women from being surrogates only once.
- Mandates that the surrogate is a close relative of the intended parents.
- Bans homosexuals, single parents, and live-in couples from surrogacy.
Note: Single women cannot opt for surrogacy arrangements, but there have been exceptions made for divorcees and widows. The 2020 Surrogacy Bill also details that widowed and divorced women aged between thirty-five and forty-five years should be allowed to be a single commissioning parent through surrogacy.
Penalties for Engaging in Commercial Surrogacy in India:
The surrogacy (regulation) bill states that any individual who takes the assistance of any doctor or surrogacy clinic for conducting commercial surrogacy will be legally responsible for the punishment of five years of imprisonment or more and a fine up to five lakh INR.
Surrogate motherhood is uncommon and fairly problem-free, but it also has the potential to have a traumatic effect on the commissioning couple, the surrogate, and the child. In positive surrogacy arrangements, surrogates’ hand over the baby to the intended parents right after the delivery. Thus, it is recommended to complete all the necessary arrangements/formalities and remain optimistic but cautious during the entire surrogacy journey for a fruitful experience.