Surrogacy in India: Marital Status and Eligibility

The Delhi High Court asked the Centre why marital status is a criteria for a woman to avail surrogacy in India under the law.

Key Points On Surrogacy in India

• A division bench of Chief Justice Satish Chandra Sharma and Justice Sanjeev Narula asked the Centre’s counsel why the marital status of a woman is associated with her eligibility to undergo surrogacy in India.
• The court was hearing a plea by a 44-year-old single, unmarried woman challenging section 2(1)(s) of the Surrogacy Act, which excludes women like her from availing the procedure while only allowing an Indian widow or female divorcee to take the benefit of the same.
• The plea also challenges the regulation that forces a “single woman (widow or divorcee)” to use her own eggs to avail the surrogacy procedure.
• Under Section 2(1)(s) of the Surrogacy (Regulation) Act 2021, an “intending woman” means an Indian woman who is a “widow” or “divorcee” between the age of 35 and 45 years and who intends to avail the surrogacy.

Understanding Surrogacy in India

• Surrogacy in India is defined as a practice wherein one woman bears and gives birth to a child with the intention to thereafter hand it over to the intending couple.
• Surrogacy is considered altruistic when the surrogate offers to carry the child of the commissioning couple in her womb purely out of love for them and empathy for their need to have a child.
• When money is paid to the surrogate for her services, it is taken as an act of commercialization.
• While commercial surrogacy is not allowed in India such procedures are allowed only for altruistic purposes with many restrictions on the person seeking to apply under the law.

Surrogacy (Regulation) Act, 2021

• The Surrogacy (Regulation) Bill was introduced in Parliament in November 2016, and passed in the Winter session of Parliament in 2021.
• Surrogacy Act 2021 defines ‘surrogacy’ as a practice where a woman undertakes to give birth to a child for another couple and agrees to hand over the child to them after birth.
• The Surrogacy Act aims to regulate the surrogacy part of a rather flourishing infertility industry in the country
• The Surrogacy law allows only altruistic surrogacy wherein only the medical expenses and insurance coverage is provided by the couple to the surrogate mother during pregnancy.
• Under the surrogacy Act, only a married couple can opt for surrogacy only on medical grounds.
• The Surrogacy law defines a couple as a married Indian “man and woman”.
• It also prescribes an age-criteria with the woman being in the age group of 23 to 50 years and the man between 26 to 55 years
• The couple having a child of their own, will not be eligible for Surrogacy.
• 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 also bans commercial surrogacy, which is punishable with a jail term of 10 years and a fine of up to Rs 10 lakhs.

Eligibility Criteria For Surrogate Mother

• To obtain a certificate of eligibility from the appropriate authority, the surrogate mother has to be:

1. A close relative of the intending couple;
2. A married woman having a child of her own;
3. 25 to 35 years old;
4. A surrogate only once in her lifetime; and
5. Possess a certificate of medical and psychological fitness for surrogacy.

• Further, the surrogate mother cannot provide her own gametes for surrogacy.

Recent Amendments to Surrogacy Law

• A government notification in March 2023 amended the law, banning the use of donor gametes.
• It said “intending couples” must use their own gametes for surrogacy.
• The petition was filed in the Supreme Court challenging the amendment as a violation of a woman’s right to parenthood.
• The Court interpreted the requirement for the child to be “genetically related” as being related to the husband.
• The Court emphasized that the law permitting gestational surrogacy is “woman-centric,” meaning that the decision to have a surrogate child is based on the woman’s inability

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