SURROGACY
Surrogacy
A type of pregnancy in which a woman carries and gives birth to a baby for a person who is not able to have children. In a surrogate pregnancy, eggs from the woman who will carry the baby or from an egg donor are fertilized with sperm from a sperm donor to make an embryo. The embryo is implanted in the uterus of the surrogate mother, who carries the baby until birth. Surrogate pregnancy may be an option for men or women who want to have children and have had certain anticancer treatments, such as chemotherapy or radiation therapy, that can cause infertility.
Types of surrogacy
- Altruistic (non-commercial) surrogacy: The birth mother does not receive any payment. This is allowed in Australia. Some states allow reasonable reimbursement of the surrogate mother's medical expenses.
- Traditional surrogacy: The surrogate mother provides her own egg, which is inseminated with the commissioning father's sperm. Since the baby is biologically the surrogate mother's own child, there may be future issues concerning the child's future right to information about her identity. Traditional surrogacy is not usually offered in clinics in Australia due to legal requirements, but it is possition. Your rights visible for the surrogate mother to inseminate herself at home. It is also possible to practice traditional surrogacy through an overseas clinic.
- Commercial surrogacy: This involves a birth mother receiving payment or material benefit. It is banned in Australia.
- It is not legal to pay a third party to arrange a surrogacy and advertising for a surrogate parent or commissioning parent is generally not allowed.
Regulating surrogacy
- Agreement Surrogate mothers and intended parents must make a formal surrogacy usually before
conception.
- There are strict regulations and eligibility requirements that must be met before entering into a
surrogacy agreement. There are also legal processes to complete following the birth. Each state and
territory with the exception of the Northern Territory has laws that regulate surrogacy.
Eligibility
- It's best if surrogates are 25 to 40 years old and are already mothers themselves and have finished their family. They should be physically and mentally healthy, settled and have a good support network. They should be motivated by a desire to help others.
- It's important to think carefully about the physical and emotional implications of carrying a baby for someone else. Think about your relationship with the parents and your future relationship with the child.
Your rights
As the surrogate mother you have financial rights. It's important to discuss all aspects of carrying a
baby with the intended parents, and for them to understand your rights. You have the right to
choose how you manage the pregnancy without interference.
CASE
On May 18, the Bombay High Court sought Mumbai-based Hindu Hospital’s reply after a couple
moved the court seeking to complete a surrogacy procedure, which commenced before Parliament
passed the Assisted Reproductive Technologies (ART) Act and the Surrogacy Act in December
2021.The couple had approached the hospital in October 2021 to undergo surrogacy after the wife
had lost both her children and could no longer naturally give birth due to a medical issue. After
completing fertilization, the embryos were cryopreserved at Thane.
Later, after the two came into force in January 2022, the hospital told the couple that they could not
transfer the embryos to the surrogate carrier as the new law prohibited it from treating the surrogate
carrier. In response, the couple moved the Bombay High Court seeking transfer of the embryos to
any other ART clinic.
The hospital argued that under the new law, such issues were to be solved by a national or state
board which had to be set up within 90 days of the implementation of the ART Act. On the other
hand, the couple pointed out that no such board has not been constituted as yet. Hence, keeping the
lifespan of the embryos in mind, the couple argued that they had to move the Bombay HC as a last
resort.
LAWS
India now officially has a law in place for regulating surrogacy services in the country. The central
government on Tuesday notified the Surrogacy (Regulation) Act 2021 and the Assisted
Reproductive Technology (Regulation) Act 2021. The two Acts aim to regulate in vitro fertilization
(IVF) clinics and prohibit commercial surrogacy in India.
As per Section 53 of the Surrogacy (Regulation) Ac, 2021, there is a gestation period of 10 months
from the date of coming into force of the aforesaid Act to existing surrogate mothers to protect their
wellbeing," tweeted the department of health research under the Union Health Ministry, which
notified both the acts commencing from January 25.
The Surrogacy (Regulation) Act, 2021 prohibits commercial surrogacy. However, it allows
altruistic surrogacy. The Bill was enacted on December 25, 2021 after receiving Presidential assent.
The Act aims to regulate surrogacy in India by establishing a National Surrogacy Board at the
central level and state surrogacy boards and appropriate authorities in states and union territories.
Similarly, the Assisted Reproductive Technology (Regulation) Act, 2021, (ART Act) aims to
regulate and supervise assisted reproductive technology clinics and assisted reproductive
technology banks, and prevent misuse
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