Explained: New rules for surrogate babies

First, a bit of history

Medical regulatory bodies first made rules for assisted reproductive technologies back in 2005. These were mostly concerned with artificial insemination, IVF etc—not so much with surrogacy.

The surrogacy boom: Over the coming decade, India became a global hub for artificial reproductive treatments—including surrogacy for sale. India offered the enticing combination of affordable but state-of-the-art medical care and cheap surrogate wombs:

Soon enough, due to prevailing socio-economic inequities, underprivileged women found an option to ‘rent their wombs’ and thereby make money to take care of their expenses — often to facilitate a marriage, enable children to get an education, or to provide for hospitalisation or surgery for someone in the family.

Worries about exploitation of impoverished Indian women quickly came to a head—primarily due to two cases: 

One: The 2008 Supreme Court case Baby Manji Yamada vs. Union of India involved a Japanese couple who had a baby through a surrogate mother—but then got divorced. The mother no longer wanted the baby—and the father was unable to obtain a visa to collect the child. In the end, the Supreme Court allowed the father to take custody of the child—but emphasised the need to regulate surrogacy.

Two: Far more shocking was the case of an Indian-origin Australian couple who simply abandoned one of the babies—when their surrogate mother gave birth to twins. The reason: They already had a boy and didn’t want another one. The case sparked great outrage in both nations—and finally triggered a ban.

Cue the ban: In 2015, the Home Ministry issued a circular banning all commercial surrogacy. In 2019, it introduced the first draft of the surrogacy legislation—which was finally passed in 2021.

Ok so what’s the law on surrogacy in India…

No babies for sale: As per the law, surrogacy is defined as a situation where a woman volunteers to carry a baby for a couple—with the intention of handing the child over at birth. Any kind of surrogacy for sale is illegal. As with organ donors in India, a woman must choose to lend her womb to a couple for purely altruistic reasons. Once the child, it is deemed to be the biological child of the couple. However, the foetus cannot be aborted without the consent of the surrogate mother.

The eligible surrogate: must be between the age of 25 and 35 years. She has to be a close relative of the couple. She must have had at least one child of her own—and can only choose to be a surrogate mother once.

The eligible couple: The “intending couple” must have a ‘certificate of essentiality’ and a ‘certificate of eligibility’. 

They will receive a ‘certificate of essentiality’ if they fulfil three conditions: 

• A certificate of infertility of at least one or both of them from a district medical board. 
• An order of parentage and custody of the surrogate child from a Magistrate.
• Insurance cover for the surrogate mother.

The ‘certificate of eligibility’: requires they be married for at least five years—and between the ages of 25 and 55. At least one of them must be facing infertility issues—and they cannot have a surviving child (biological, adopted or surrogate). But there is an exception for a “child who is mentally or physically challenged or suffers from life threatening disorder or fatal illness.”

Sounds a bit extreme…

Everyone accepts the need to prevent exploitation of vulnerable women. But critics say the laws should protect them—not deprive them of an avenue for significant income. When commercial surrogacy was banned, women were earning between Rs 3 to 5 lakhs per pregnancy. As Yashaswini Basu observed in Outlook:

Unregulated commercial surrogacy did stir up several controversies but undoing the practice does not solve the problem at hand. Commercial surrogacy has been a conscious choice of many women for several years and this blanket ban not only impacts them financially but also infringes upon their reproductive choice, a fundamental right guaranteed under Article 21 of the Indian Constitution.

Also this: Making the practice illegal made the women more vulnerable than ever:

Others, primarily those involved in organ transplantation, pointed out how despite a similar, stringent law — the Transplantation of Human Organs Act — organ commerce continues to thrive in the country. Brokers continue to operate, though with less temerity and more covertly, sometimes with hospital authorities, to pull wool over the eyes of the appropriate authority and law enforcement officials.

The many double standards: The law is clearly rooted in a traditional concept of heterosexual marriage. Single women cannot opt for surrogacy—unless they are divorced or widowed. The option is denied to single men and queer couples. It is extremely restrictive for married couples as well—since getting a close relative to carry a baby is hardly easy.

So what’s this new amendment?

In the original law, the rules allowed for the donation of eggs—but not sperm. A change introduced in 2023 made the laws more stringent. It required that both the egg and sperm used for the embryo must come from the ‘intending couple’. 

The challenge: The amendment was appealed by a woman suffering from the Mayer-Rokitansky-Kuster-Hauser (MRKH) Syndrome. She was unable to have a baby as she did not have a uterus. As her lawyers pointed out, the surrogacy law requires that one or both members of a couple ought to be facing infertility issues. So it’s absurd to deny the use of donor eggs in cases where the woman is unable to produce them.

The Supreme Court agreed:

Staying the operation of the law, a bench of Justices B.V. Nagarathna and Ujjal Bhuyan highlighted that it prevents intending couples from achieving parenthood through surrogacy which is prima facie contrary to the objective of the parent law — the 2021 Act. The court also recognised that the law permitting gestational surrogacy was “woman-centric” as it was a woman’s choice to have a surrogate child owing to existing medical or congenital conditions. 

Hence, the amendment: Soon after the ruling, the government promised to revisit the 2023 amendment. And it has kept its promise. On February 21, it modified the rules to allow married couples to use both donor sperm and donor eggs. 

But, but, but: A divorced or widowed woman still must only use her own eggs—which seems arbitrary and unfair.

Surely, someone’s challenged the law…

Yes. A single 44-year old woman is challenging the limitation of surrogate motherhood to previously married women—i.e divorced or widowed. She is also challenging the rule requiring the intending mother to use her own eggs.

But the Supreme Court doesn’t seem to be impressed by her argument: 

The Supreme Court, while issuing notice to the government, remarked that there were other ways in which the woman could have a child—she could get married or adopt. It also remarked that she could not have everything in life as she had chosen to remain single and that the institution of marriage was important in society as children need to know their fathers.

The bottomline: The government’s laws on surrogacy are designed to protect the right of married couples to have babies—by any means necessary. It doesn’t extend the same privilege to anyone else—single or queer.

Reading list

Indian Express and The Hindu are best on the latest amendment. Also in the Indian Express: Supreme Court lawyer Jayna Kothari calls out the double standards for single women in the Indian Express. Outlook has a good overview on surrogacy laws in India. The Hindu explains the surrogacy and ART laws.