What Are the Challenges of the New Surrogacy Law in India?

The recent changes to surrogacy laws in India, particularly with the introduction of the Surrogacy (Regulation) Bill, 2020, have brought significant reforms to the surrogacy process. The law mandates that only altruistic surrogacy in India is permitted, where surrogates are not compensated beyond medical expenses and insurance, and commercial surrogacy is strictly prohibited. While the law aims to protect the rights of surrogates and regulate the surrogacy industry, it has also introduced several challenges for intended parents, surrogates, and altruistic surrogacy agencies.

1. Altruistic Surrogacy and Its Impact on Surrogates

The new law mandates altruistic surrogacy, meaning that the surrogate mother can no longer receive financial compensation beyond medical expenses, insurance, and post-pregnancy care. The law's intention is to protect women from exploitation and to prevent the commercialization of surrogacy, which has historically been a concern in India.

Challenge: While altruistic surrogacy aims to eliminate commercial exploitation, it may also discourage some women from becoming surrogates. Without sufficient compensation, potential surrogates may not see surrogacy as a viable option for financial stability. This could lead to a shortage of women willing to carry pregnancies for others, especially in poorer regions of India.

Moreover, the decision to carry a child for another family requires significant emotional and physical sacrifice. The lack of adequate compensation might make it harder to find willing and motivated surrogates, raising concerns about the long-term viability of the altruistic surrogacy model.

2. Stringent Eligibility Criteria for Surrogates

The new law has introduced strict eligibility criteria for surrogates. Women must be between 25 and 35 years of age, married, and already have at least one biological child. They must also not have undergone more than one surrogacy cycle in their lifetime.

Challenge: These eligibility restrictions may limit the pool of potential surrogates. Some women who might be willing to help others through surrogacy but do not meet the strict criteria (e.g., age or marital status) could be excluded. This could result in fewer women offering surrogacy services, especially in rural or economically disadvantaged areas where financial necessity might encourage surrogacy.

3. Complicated Legal Framework for Intended Parents

Under the new surrogacy law, only couples who are legally married (man and woman) are allowed to pursue surrogacy. Single individuals, unmarried couples, and same-sex couples are excluded from the law. This is a significant shift from previous surrogacy practices that allowed more diverse family structures to pursue surrogacy.

Challenge: For single parents, same-sex couples, and unmarried couples, the new law creates legal and emotional barriers to having children through surrogacy. These groups, who previously sought surrogacy as an option to become parents, now find themselves excluded from the process, leading to concerns about equality and access to reproductive rights.

4. Regulation and Oversight by Altruistic Surrogacy Agencies

While the law has introduced regulations that require surrogacy agencies to ensure ethical practices, many altruistic surrogacy agencies are struggling to keep up with the newly defined roles and compliance regulations.

Challenge: Many surrogacy agencies must now focus on meeting the legal requirements laid out by the government, such as ensuring the eligibility of intended parents and surrogates, as well as adhering to the limits of compensation. This place added pressure on agencies to provide comprehensive and transparent services that are aligned with the new legal framework, which can be both time-consuming and resource-draining. Additionally, smaller agencies may struggle to comply with the stringent regulations, which could affect their ability to operate effectively.

5. Social and Emotional Impact on Surrogates

While the law aims to protect surrogate mothers, there are concerns about the emotional and social impact on women who carry children for others. Without the financial benefits of commercial surrogacy, surrogates may find it harder to cope with the emotional and psychological aspects of the process.

Challenge: The emotional support and counseling for surrogates may not always be sufficient, leading to potential feelings of isolation or distress. There is also the risk that surrogates may not fully understand the legal complexities surrounding their rights, leading to potential disputes or misunderstandings after the birth of the child.

Conclusion

While the new surrogacy law in India aims to create a more ethical and regulated framework for surrogacy practices, it presents several challenges for both intended parents and surrogates. The shift to altruistic surrogacy in India has raised concerns regarding surrogate compensation, eligibility criteria, and the exclusion of certain groups of people from accessing surrogacy. Moreover, the legal and social implications of the law need careful consideration to ensure that surrogacy remains a safe, accessible, and supportive option for all parties involved.

For those considering surrogacy, it's important to consult with a reputable altruistic surrogacy agency to understand the legal, emotional, and financial aspects of the process and navigate the complexities introduced by the new law.