Surrogacy: Types, Process, Eligibility, Risks and Surrogacy Laws in India

What Is Surrogacy?

Surrogacy is an arrangement in which a woman carries a pregnancy for an intending couple or intending woman and agrees to hand over the child after birth.

In gestational surrogacy, an embryo is created using the required egg and sperm through assisted reproductive technology and then transferred into the surrogate mother’s uterus. The surrogate mother does not provide her own egg and therefore is not genetically related to the child.

Surrogacy should be considered only after a detailed medical evaluation and discussion with a fertility specialist. In India, it can be undertaken only when the legal and medical requirements are met.

When May Surrogacy Be Considered?

Surrogacy is not simply an alternative to pregnancy or infertility treatment. In India, it is permitted only when there is a medical indication requiring gestational surrogacy.

Medical indications may include conditions such as:

• Absence of the uterus
• Certain abnormalities of the uterus
• Surgical removal of the uterus
• Medical conditions that make carrying a pregnancy impossible or potentially life-threatening
• Repeated failure to conceive following multiple IVF/ICSI attempts in specified circumstances
• Certain cases of recurrent pregnancy loss where the prescribed medical criteria are met

The applicable regulations specify the medical indications for which an eligibility certificate may be considered. A medical indication must be certified by the District Medical Board.

Types of Surrogacy

Surrogacy is generally described as traditional surrogacy or gestational surrogacy.

1. Traditional Surrogacy

In traditional surrogacy, the surrogate’s own egg is used for conception. This means the surrogate has a genetic relationship with the child.

Traditional surrogacy is different from the form of surrogacy permitted under India’s current legal framework. The Surrogacy (Regulation) Act, 2021 requires that a surrogate mother must not provide her own gametes.

2. Gestational Surrogacy

In gestational surrogacy, an embryo is created through assisted reproductive technology and transferred into the surrogate mother’s uterus.

The surrogate mother does not provide the egg used to create the embryo. Therefore, she does not have a genetic relationship with the child.

This is the type of surrogacy specifically recognised under India’s current surrogacy framework.

How Does Gestational Surrogacy Work?

The process generally involves several medical and legal steps.

Step 1: Medical Evaluation

The intending couple or intending woman undergoes a detailed medical assessment to determine whether surrogacy is medically indicated.

The potential surrogate mother also undergoes medical and psychological fitness assessments.

Step 2: Confirmation of Medical Indication

The District Medical Board evaluates the medical condition and issues the required certificate where the prescribed criteria are met.

Step 3: Legal and Regulatory Approvals

The intending couple or intending woman and the surrogate mother must obtain the required eligibility and essentiality certificates from the appropriate authority.

The applicable legal process also includes requirements concerning parentage and custody of the child and insurance coverage for the surrogate mother.

Step 4: IVF and Embryo Creation

Depending on the medical situation and applicable regulations, eggs and sperm are used to create an embryo through IVF.

Current Government guidance states that an intending couple generally uses their own gametes. Donor gametes may be permitted in specified medical circumstances, subject to the applicable conditions, including the requirement that at least one gamete comes from the intending couple. For an intending woman who is a widow or divorcee, the Government FAQ states that self-eggs and donor sperm are to be used.

Step 5: Embryo Transfer

The embryo is transferred into the surrogate mother’s uterus.

Under the current rules, one embryo is generally transferred during a treatment cycle, although special circumstances may permit up to three embryos.

Step 6: Pregnancy and Delivery

The surrogate mother receives appropriate antenatal care and medical monitoring throughout pregnancy.

After delivery, the child is handed over according to the applicable legal arrangements and parentage requirements.

Why choose surrogacy to grow your family?

Surrogacy generally helps couples with fertility issues who are not able to produce a baby. In fact, it is also considered the best option for couples of the same sex, who can not reproduce a child naturally. Surrogacy gives you the option to grow your family and helps you feel whole about it.

What’s the Difference between a Surrogate vs a Gestational Carrier?

There is a significant difference between surrogate and gestational carriers. Read along to understand it.

Surrogate is typically when the carrier’s own eggs are used for embryo fertilization. Therefore, there is a DNA connection between a surrogate and a baby.

On the other hand, the gestational carrier has no DNA connection with the baby. During this type of surrogacy, the expert uses the intended parent’s eggs or donor’s eggs for embryo transfer and fertilization.

Surrogacy and Indian law

IVF has made it possible for the process of gestational surrogacy to be carried out smoothly. However, this process brings some psychological effects and health issues.

Further, myriad legal complications that come with surrogacy are often overlooked in the enthusiasm of having a baby. In India, there are very stringent laws governing surrogacy.

According to the Assisted Reproductive Technology (Regulation) Act, 2021, only altruistic surrogacy is allowed in India. Altruistic surrogacy is where the surrogate mother receives no financial compensation except to cover expenses incurred during the pregnancy.

Commercial surrogacy is strictly prohibited in India and is a punishable crime. A child born through surrogacy is considered the biological child of the intended parents and will be entitled to all rights and privileges from them alone.

There can sometimes be other legal complications as well. There is no surrogacy cost paid to the mother, but she hands over the baby, whom the couple adopts to become a happy family. However, there are cases where the biological mother refuses to hand over the child, which can result in a legal battle.

Alternatively, sometimes the intended parents refuse to accept the child for various reasons, like deformities and congenital issues. Such scenarios can also end in unpleasant court cases.

Surrogacy is regarded differently in various countries and even in different states of the same country, like in the United States of America. So, if you are considering having a baby through gestational surrogacy, you would have to acquaint yourself with the legalities that are specific to a particular country.

Is Commercial Surrogacy Legal in India?

No. Commercial surrogacy is prohibited in India.

India permits altruistic surrogacy, where the surrogate mother does not receive commercial remuneration or financial incentives for carrying the pregnancy. However, prescribed medical expenses, insurance coverage and other permitted expenses can be covered according to the applicable rules.

The Surrogacy (Regulation) Act, 2021 also prohibits the commercialisation of surrogacy services and provides penalties for violations.

Surrogacy and religion

Different faiths have different takes on surrogacy. Much is left to the interpretation of different religions because when they were founded, the concept of IVF did not exist. However, it is interesting to know how each religion looks at this concept.

Here are the views of some of the major religions in India on surrogacy:

• Christianity

A prime example of surrogacy can be seen in the Book of Genesis in the story of Sarah and Abraham. However, according to Catholics, children are a gift of God and have to come in the normal course. Any interference whatsoever in the process of reproduction, be it abortion or IVF, is considered to be immoral.

Various sects of Protestants have different levels of acceptance of the concept of surrogate pregnancy. However, most of them have a more liberal view of surrogacy.

• Islam

There are varying views on surrogacy in Islam. The opinions of Islamic scholars vary from considering it adultery to acceptance on the basis that it is a part of attempts to preserve humanity.

Some believe it is acceptable for a married couple to contribute their sperm and ovum for the IVF procedure. Sunni Muslims, however, rule out any third-party assistance as a part of the reproductive process.

• Hinduism

In Hinduism as well, there are varying views on surrogacy. The general concept is that artificial insemination can be allowed if the sperm belongs to the husband.

In India, surrogate pregnancy is widely practised, particularly by Hindus.

• Buddhism

Buddhism accepts surrogacy based on the fact that it doesn’t see procreation as a moral duty. Therefore, couples can reproduce as they best seem fit.