The amendment is the result of multiple petitions across the country. Courts have passed interim orders in multiple cases allowing women with Mayer-Rokitansky-Küster-Hauser (MRKH) syndrome to use a surrogate, allowing import of the embryo of commissioning parents and gametes of an intending father into India as well as allowing parents who had lost a child to use surrogacy. Even allowing maternity leave to the commissioning mother was an issue decided by litigation. Similar orders have also been passed in the Arun Muthuvel Vs Union of India and related cases pending in the Supreme Court.

These cases question various aspects of the Surrogacy (Regulation) Act, 2021 (SRA) and its related Rules as well as the apparent contradictions between the SRA and the Assisted Reproductive Technology Act, 2021 (ART Act) and its related rules. According to the SRA, only a heterosexual married couple with no surviving children and widowed or divorced single women are currently eligible to commission surrogacy arrangements. Single men and women who are not widowed or divorced cannot enter into surrogate arrangements.

The regulation of surrogacy and surrogacy clinics and also providing a legally sound set of safeguards for all parties, i.e. the commissioning parent/s, the surrogates and the children born of such arrangements was urgent. In the decade prior to the passing of the two Acts, the Volden (Netherlands), Jan Balaz (Germany) and Manji Yamada (Japan) and other cases highlighted the plight of parents and children separated from each other or having to undertake costly and time-consuming litigation to bring Indian-born children to the countries of their parents/grandparents. But India has to be careful not to make Indian parents the ones having to litigate to allow for the completion of their family.

The ART and surrogacy cases highlight some important issues. The stricter legislation post-2019 has not led to better regulation of ART and surrogacy clinics. As of 2017, 80% of the IVF clinics were still unregistered and 98% of the ART clinics were not registered. The number of registered clinics falls far short of the total number of clinics in the country, and there seems to be no clinic which was rejected as per the national ART and surrogacy registry website.

The SRA does not recognise even live-in relationships despite such relationships having legal sanction in India since 2010. Within the narrow group of married heterosexual couples, at least one of the commissioning parents must be able to produce gametes. Same-sex couples and foreigners were prohibited from surrogacy in India in 2013 and 2016, respectively. The SRA did not change this position. At first, the SRA allowed only Indian citizens the right to enter into surrogacy arrangements, but an amendment now allows overseas Indian citizens this right too. The age limits for the couples currently set at between 23-50 years for the women and 26-55 years old for the men also seem to be needlessly restrictive.

The complete ban on compensated surrogacy may also deserve a relook, as this means Indian couples are forced to travel abroad in case they do not meet the restrictive limits of the current legislation. It also seems arbitrary that all the actors involved in supporting surrogacy can be compensated, for example, doctors and lawyers, but the surrogate herself cannot. Thailand is also considering rolling back the complete ban on compensated surrogacy.

The requirement of board certifications and the method of record-keeping raises privacy concerns as well due to the involvement of various court and government agencies at different steps in the process. Thus, while the Acts are meant to protect women, the restrictions on women and their freedom to choose these procedures restrict the very same rights to autonomy the Acts seek to protect (marital status, age and the ability to use her womb as she wishes with informed consent).

Lavanya Regunathan Fischer is a lawyer. The views expressed are personal