Surrogacy, world over, has been a gray, controversial and a nuanced area. Further rendered complicated by subjectiveness and relativity of each case. However, taking clear sides last week, Italy's Parliament adopted a bill making surrogacy a "universal crime."
Though surrogacy has been banned in the country since 2004, the controversial bill even puts an end to children being obtained abroad through surrogacy. Making its position unequivocally clear, the Meloni government said, "this inhumane practice must end."
The law heavily fines and punishes cross-border surrogacy, with fines up to €1 million and prison sentences of up to two years for those found violating the provisions or continuing to use the system to have children.
What does the Indian law say on surrogacy?
While various legal nuances are at play, simply speaking, Indian law prohibits commercial surrogacy and only allows altruistic surrogacy. The Surrogacy (Regulation) Act, 2021 was finally passed in December by the Parliament in 2021.
The law not just intends to "end the practice of hiring wombs" in India but also regulate and prevent its misuse. As per the law, the surrogacy is considered altruistic when the surrogate offers to carry the child of the commissioning couple purely out of love and empathy. However, the act becomes commercial when money is paid to surrogate for her services. Covering a lot of ground, gray areas and exhaustively defining the institution of marriage and family, the law makes it mandatory for intending couples to go through court for contracting a surrogate.
Eligibility criteria for couples, surrogate
The couple, only between 25 and 50 years of age, wishing to have a child through surrogacy will first have to approach the government medical board comprising of obstetricians, pediatricians, other specialists. They should not have had a child, either naturally conceived, adopted or through surrogacy and must possess a clear medical and radiological report.
The Surrogacy laws also make it mandatory for the couple to take an insurance policy for the surrogate mother to cover her medical needs for 36 months from the date of embryo transfer.
Not just the commissioning couple but the surrogate has to be eligible to. She needs to be between 25 and 35 years of age, be married with at least one child of her own. She must be certified as mentally fit by a psychiatrist and must also be a first time surrogate. After having obtained their respective eligibility certificates, the surrogate mother and the couple can approach the Assisted Reproductive Technology center for embryo transfer. It must be noted that the law has banned the export of embryos to foreign countries.
Surrogacy, celebs, celluloid and reality
The concept of surrogacy, onscreen has made for absurd scripts to interesting plots. Off the screen too, several celebrities have adopted parenthood through surrogacy, much to the divided opinions and judgements of many. About a decade back in 2013, B-town's most influential star Shah Rukh Khan announced the birth of his third child with wife Gauri Khan via surrogacy.
Among the most recent couples, Priyanka Chopra and Nick Jonas had their first child through surrogacy, fueling several speculations. While many blamed Chopra's busy career for the couple's decision, she slammed all the judgements in an interview, "I had medical complications...You don't know me. You don't know what I have been through. Just because I'm not ready to make my or my daughter's medical history public, doesn't give you the right to make up reasons."
While many single parents in B-town like Karan Johar have had children via surrogacy, Indian surrogacy law prevents single parents, same-sex couples, divorced or widowed persons, transgender persons, live-in partners and foreign nationals from using surrogacy for parenthood.
'Welfare of the child of utmost importance'
While many LGBTQ rights advocacy groups have argued how the Indian laws on surrogacy are not inclusive, but the government in the Supreme Court said, that the inclusion of live-in and same gender couples would lead to misuse and not provide children, "a complete family." in the affidavit submitted before Court, the Union's Department of Health Research and the ICMR (Indian Council of Medical Research) said, "the welfare of the child trumps any notions of equality amongst prospective/intending parents/ couples." The laws, definition of a complete family, medical advances in the field of surrogacy continue to be open to both, debate and evolution.
