The announcement by Tamil film director Vignesh and his wife, actor Nayanthara, that they had become parents to twin boys is building up into a controversy, with speculations that the couple opted for surrogacy.
During a press conference Monday, Tamil Nadu Health Minister Ma Subramanian said an inquiry will be conducted into the case. “Surrogacy is subjected to a lot of debates. But the law allows individuals to opt for it if they are above 21 years and below 36 years of age, with the approval of the family,” the minister said.
Though the couple has not commented on these reports, the suggestion of an inquiry has led to questions about what the surrogacy laws in India state.
What are the conditions for allowing surrogacy, as per the law?
In India, for a long time, foreign couples opted for surrogacy due to its good and affordable medical system. Over the years, the government has put restrictions on the practice with the stated aim of regulation.
Surrogacy is defined by law as “a practice whereby one woman bears and gives birth to a child for an intending couple” and intends to hand over the child to them after the birth, as per The Surrogacy (Regulation) Act, 2021 (SRA).
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It further allows for surrogacy to be available only to infertile Indian married couples. The other legislation on this matter, the Assisted Reproductive Technology (ART) (Regulation) Act, 2021, defines ART procedures as all techniques that attempt to obtain a pregnancy by handling the sperm or the oocyte (the immature female egg) outside the human body and transferring into the reproductive system of a woman. This is open to married couples, live-in partners, single women, and also foreigners. ART procedures include gamete donation, intrauterine insemination, and in-vitro fertilisation or IVF.
The SRA Act says the surrogate should be married and have a child of her own. Restricting altruistic surrogacy to legally wedded infertile Indian couples, the Act sets an age limitation for the couple where a husband must be between 26 and 55 years of age and a wife between 23 and 50 years. Further, Indian couples with biological or adopted children are prohibited to undertake surrogacy, save for some exceptions such as mentally or physically challenged children, or those sufferings from a life-threatening disorder or fatal illness.
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Even within this category of people, commercial surrogacy is banned in India and that includes the “commercialisation of surrogacy services or procedures or its component services or component procedures”. The surrogate woman cannot be given payments, rewards, benefits or fees, “except the medical expenses and such other prescribed expenses incurred on the surrogate mother and the insurance coverage for the surrogate mother”.
How does opting for surrogacy work?
Relevant authorities have been set up by the Act at several levels to check whether these specifications have been met. All surrogacy clinics must be registered with the government and only then can they conduct the procedure. According to the Health Ministry, the estimated number of clinics practising surrogacy in India is likely to be less than 1,000.
The central and the state governments are to constitute the National Surrogacy Board (NSB) and the State Surrogacy Boards (SSB), respectively. Functions of the NSB include advising the central government, laying down the code of conduct of surrogacy clinics and reviewing the implementation of the Act. Similarly, appropriate authorities are constituted at national and state levels to grant or suspend clinics’ licences, to check on complaints of breach of the Act’s provisions and carry out other similar tasks.
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For example, certificates of proven infertility/expert medical reports of either spouse or of intending couple from a District Medical Board are mandatory. A certificate of eligibility issued by the appropriate authority shows the criteria have been met – both by the to-be parents and the surrogate woman. Other requisite authorities, such as the Director or in-charge of the surrogacy clinic must also be satisfied that conditions have been met.
Commercial surrogacy, among other offences, can lead to imprisonment for a term of at least 10 years and a fine extending to Rs 10 lakh.
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What are some criticisms of the law?
Anil Malhotra, a legal commentator who wrote in The Indian Express after the law came into effect, pointed out some criticisms of the law.
“Permitting limited conditional surrogacy to married Indian couples and disqualifying other persons on basis of nationality, marital status, sexual orientation or age does not pass the test of equality,” he wrote. He added that reproductive autonomy, inclusive of the right to procreation and parenthood, is not within the domain of the State. “Moreover, infertility cannot be compulsory to undertake surrogacy,” wrote Malhotra, adding that the certificate to prove infertility is a violation of privacy as part of the right to life under Article 21 of the Constitution.
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The punishment mentioned in the law can also be detrimental to surrogacy as a whole. Dr Nayana Patel, a fertility, IVF and surrogacy specialist, speaking at a webinar organised by the Gujarat National Law University in March 2022 on the law, said, “The Act provides for 10 years of imprisonment and a fine of Rs 10 lakh for a medical practitioner for contravention of any provision of the Act. It is a very harsh provision. It will put off all doctors, and they will not undertake surrogacy procedures. No other country in the world has such a harsh provision.”