Exemptions from the Surrogacy Law

The government has stated before the Supreme Court that same-sex couples and live-in partners are not covered in surrogacy and assisted reproduction regulations in order to minimise “misuse” and give children with a “complete family.”

The government’s position

  • Surrogacy and assisted reproduction regulations exclude same-sex couples and live-in partners to prevent’misuse.’
  • The child’s welfare should take precedence above any conceptions of equality among potential parents or spouses.
  • Despite the decriminalisation of their partnerships, no special protections or additional privileges have been granted to same-sex couples and live-in partners.

Why in news?

  • The government’s viewpoint contradicts many Supreme Court decisions holding that long-term live-in relationships “presume” marriage.
  • Live-in partners are not legally bound, and the child produced through surrogacy cannot be guaranteed to be safe.

Support from the judiciary

  • Same-sex couples are battling for the ability to marry and have children as equals.
  • The Chief Justice of the Supreme Court has stated that same-sex couples may provide as stable and loving a home for their children as heterosexual married parents, if not better.

Characteristics of the Surrogacy (Regulation) Act of 2021

  • Surrogacy is defined as follows: Surrogacy is defined as a practise in which a woman gives birth to a child for an intending couple with the aim of handing the kid over to the intending couple after the birth.
  • Surrogacy regulation: It outlaws commercial surrogacy but allows altruistic surrogacy, in which the surrogate mother receives no monetary compensation other than medical bills and insurance.
  • Surrogacy is legal for the following reasons: Surrogacy is permissible when: (i) intended couples with proven infertility; (ii) altruistic; (iii) not for commercial purposes; (iv) not for producing children for sale, prostitution, or other forms of exploitation; and (v) for any condition or disease specified by regulations.
  • Criteria for eligibility: The prospective couple must receive a ‘certificate of essentiality’ and a ‘certificate of eligibility’ issued by the competent body, such as the District Medical Board.

Criteria for surrogate mother eligibility:

  • The surrogate mother must be a close relative of the prospective couple in order to receive a certificate of eligibility from the proper government.
  • A married woman with her own child; 25 to 35 years old; a surrogate only once in her life; and
  • Have a document proving your physical and psychological readiness for surrogacy.
  • Furthermore, the surrogate mother is unable to supply her own gametes for surrogacy.

The Petition’s Basis: The Right to Reproductive Independence

  • The personal decision of a single individual to have a baby through surrogacy, i.e., the right to reproductive autonomy, is a component of the right to privacy provided by Article 21 of the Constitution.
  • As a result, no citizen or person influencing a decision to bear or beget a child through surrogacy can be denied the right to privacy.

Other Concerns Regarding Surrogacy Law

  • Medical problem requirement: Surrogacy services are only available to married women who are unable to bear children owing to medical issues.
  • Widow/Divorced: Otherwise, women must be between the ages of 35 and 45 and widowed or divorced in order to use surrogacy services.
  • Women can only offer surrogacy if they are between the ages of 25 and 35, married, and have at least one biological child.
  • The laws also demand that a surrogate be genetically linked to the couple that intends to conceive a child through this means. 
And get notified everytime we publish a new blog post.