Surrogacy in India has been a topic of contention due to several viral cases of malpractice by centres, including exploitation of women as well as legal custody conundrums for infants of transnational clients. Given the several caveats of lack of assertion of agency by surrogate women and widespread scope of exploitation of both surrogate mothers as well as intending couples.
The Surrogacy (Regulation) Act, 2021 lays down crucial provisions governing the practice of surrogacy in India. Surrogacy refers to the voluntary donation of an egg or oocyte by a fertile woman to a couple unable to conceive. While surrogacy can be altruistic or commercial, India permits only altruistic surrogacy since the ban of commercial surrogacy through the SRA 2021. The criminalisation was preceded by reportage of several instances of exploitation faced by surrogate mothers as well as intending parents due to lack of necessary regulatory safeguards in case of malpractice by the clinics as well as conflicts between the concerned parties. This article explores Section 4 of the Surrogacy Regulation Act, which outlines the eligibility criteria for surrogate mothers, a section that has faced widespread criticism for being extremely regulatory and restrictive but remains vital for ensuring the well-being of all parties involved. By dissecting these conditions, I will argue why they are essential for the responsible practice of surrogacy.
Ever-Married Women with Children
Section 4 mandates that only an ever-married woman (a woman who has been married at least once in her life, regardless of her current marital status) who already has a child can be a surrogate mother. This condition is primarily designed to protect the surrogate from potential emotional or psychological distress. A woman who has not yet had her own child may be more vulnerable to forming an emotional bond with the baby she carries, making it difficult for her to relinquish custody to the intended parents. Cases have been documented, particularly in the United States, where surrogate mothers contested custody of the child due to an unanticipated emotional attachment. In one of the pioneering cases which shaped surrogacy law in the US, Baby M, (1986-1988), Mary Beth Whitehead, a traditional surrogate, entered into a contract with William and Elizabeth Stern to carry their child. The agreement stipulated that she would relinquish her parental rights after giving birth. However, upon seeing the baby, whom she named Melissa, Whitehead experienced a profound emotional attachment and sought to keep the child, leading to a custody battle.
By restricting surrogacy to women who have already experienced motherhood, the law aims to minimize the emotional burden of separation from the child. The assumption is that a woman who has previously gone through childbirth is more likely to understand and handle the emotional complexities of surrogacy. Although, the application of this rationale by the judiciary is inherently presumptive and does not take into account the individual right to reproductive labour that all woman should possess, precedents have proved that the separation between the surrogate mother and the child can also lead to emotional turmoil and increased involuntary labour on parts of both bodies. Hence, this presumption, admittedly restricting and lacking agency, has proved to work well in surrogacy agreements.
Furthermore, a married woman is likely to have spousal support during the process, which can be critical for her emotional and physical well-being. This provision also discourages the possibility of coercion or exploitation, as an unmarried woman may lack the same support systems and might be more susceptible to undue influence or financial incentives.
Age Limit: 25 to 35 Years
The second eligibility criterion is an age restriction, limiting surrogacy to women between 25 and 35 years of age. This age range is grounded in biological considerations. Women in this age bracket are generally at their peak reproductive health, which reduces the risks associated with pregnancy and ensures a higher likelihood of a successful, healthy outcome for both the surrogate and the child. Pregnancy outside of this range can increase the risk of complications, including miscarriages and premature births, which may endanger the lives of both the surrogate mother and the child.
Addressing Concerns on Commercial Surrogacy
Advocates for commercial surrogacy may argue that the restrictive conditions in Section 4 limit the availability of women who can serve as surrogates, thus creating a barrier for couples seeking to start families. However, this perspective treats surrogacy as a commercial transaction, where the focus is on supply and demand rather than the well-being of the individuals involved. The process of bringing a human life into the world cannot be reduced to market dynamics.
The stringent conditions ensure that only women who can responsibly engage in surrogacy are allowed to participate, prioritizing the physical and psychological well-being of the surrogate, the intended parents, and the child. The altruistic surrogacy framework in India is a deliberate attempt to remove any commercial motives from the equation, emphasizing that surrogacy is not about fulfilling a demand but about helping couples while safeguarding the interests of all involved.
The eligibility conditions set forth in the Surrogacy Regulation Act are not arbitrary but rather carefully considered provisions designed to protect the well-being of surrogate mothers, intended parents, and the child. These conditions mitigate potential risks—emotional, psychological, and biological—while ensuring that surrogacy remains an altruistic act free from exploitation. The welfare of the child and the surrogate mother must always remain paramount, and the provisions of the Act reflect this commitment.