Mains Marathon

Approach

Introduce with the definition of surrogacy. Discuss key provisions of the surrogacy act 2021. Discuss some challenges across diverse cultural, economic and geographical contexts. Give a way forward.

Answer:

Surrogacy is a legal arrangement or process in which a woman (referred to as a surrogate mother) agrees to carry and give birth to a child on behalf of another individual or couple (referred to as intended parents or commissioning parents), who usually cannot conceive or carry a pregnancy to term themselves due to medical reasons or other circumstances.

• The Surrogacy Act 2021 in India introduces several key provisions aimed at preventing the exploitation of surrogate mothers and ensuring their well-being and rights.

Key points of Surrogacy act 2021:

• Altruistic Surrogacy Emphasis: The Surrogacy Act 2021 focuses on altruistic surrogacy, prohibiting commercial surrogacy where surrogate mothers might be financially exploited.
  • Prohibiting commercial surrogacy prevents potential exploitation of surrogate mothers for financial gain.
• Eligibility and Informed Consent: The law defines a couple as a married Indian “man and woman” and prescribes an age-criteria with the woman being in the age group of 23 to 50 years and the man between 26 and 55 years.
  • Though the law allows single women to resort to surrogacy, she should either be a widow or a divorcee, between the age of 35 to 45 years.
  • Single men are, however, not eligible.
  • It mandates informed consent from surrogate mothers, protecting them from entering into agreements without a clear understanding of the process.
• Insurance Coverage for Medical Expenses: The act mandates insurance coverage for surrogate mothers' medical expenses during and after pregnancy.
• No Multiple Surrogacies: The act limits surrogate mothers to one successful surrogacy to protect their physical and emotional well-being from the potential risks associated with multiple pregnancies.
  • The physical toll of multiple pregnancies can have adverse effects on surrogate mothers' health. The provision aims to safeguard their long-term well-being.
• Trust Fund for Surrogate Mothers: In addition to reimbursing reasonable expenses, the act establishes a trust fund for surrogate mothers' benefit.
  • This initiative provides a safety net beyond basic reimbursements, acknowledging their contribution.
• Right to Terminate Pregnancy: The act grants surrogate mothers the right to terminate the pregnancy if it endangers their life or health, ensuring their autonomy over their bodies.
  • Situations might arise where the pregnancy poses serious risks to the surrogate mother's health. This provision prioritizes her well-being and choice.
• National and State Surrogacy Boards: The act establishes these boards to oversee the process, ensuring transparency, accountability, and adherence to the provisions. These boards contribute to safeguarding surrogate mothers' interests.

Challenges arise due to variations in social norms, economic conditions, and regional disparities:

• Cultural Diversity: Different cultural norms regarding family structure, reproduction, and women's roles can affect the acceptance of surrogacy within communities.
  • Traditional communities may view surrogacy as against their cultural values, making enforcement difficult.
• Economic Disparities: Economic conditions vary widely across India. Low-income regions might see women opting for surrogacy to earn money.
  • The desire to alleviate financial hardship could drive women to engage in surrogacy despite potential health risks.
• Access to Information: Lack of awareness about the legal provisions and rights could lead to surrogate mothers not fully understanding their rights.
  • In remote areas with limited access to information, surrogate mothers might not know about their entitlements.
• Healthcare Disparities: Variations in healthcare infrastructure can impact the quality of medical care surrogate mothers receive during and after pregnancy.
  • Surrogate mothers in rural areas might face challenges in accessing proper medical facilities, affecting their health and well-being.
• Regional Practices and Beliefs: Local customs and practices might influence attitudes towards surrogacy, affecting the acceptance and enforcement of the act.
  • Regions with strong traditional beliefs about childbirth might be resistant to surrogacy, hindering enforcement.
• Language and Literacy Barriers: Language barriers and low literacy rates might hinder surrogate mothers' understanding of the legal provisions and their right.
  • Surrogate mothers unable to comprehend legal documents might be at a disadvantage.

Way forward:

• Karnataka High Court has evolved “triple tests” to help a couple facing legal hurdles to have a surrogate child under provisions of Surrogacy (Regulation) Act, 2021.
  • Genetic test for husband to ensure child is not born with any disorder.
  • Physical test for couple to ascertain their capacity to manage the child.
  • Economy test for couples to ensure that they can protect the future of the child.
• Addressing Post-Partum Depression: The government's responsibility extends to recognizing and addressing postpartum depression, necessitating provisions for maternal mental health. Furthermore, maternal benefits should be accessible to both mothers involved in the process.
• Gradual Expansion of Surrogacy Choices: Over time, with meticulous safeguards, there is a potential to progressively broaden the scope of surrogacy to include commercial arrangements. This expansion aims to provide solace to individuals who have been denied the joy of parenthood.

While the Surrogacy (Regulation) act, 2021, presents potential improvements in safeguarding surrogate mothers' well-being, its effectiveness will rely on robust implementation, proper enforcement, and regular monitoring to ensure the desired outcomes for surrogate mothers in India.