How Are the Rights of Surrogate Mothers Protected in India?

In India, the issue of surrogacy has been a matter of legal and ethical debate, with a need to balance the rights of intended parents, the surrogate mother, and the child. The Surrogacy (Regulation) Bill, 2020 aims to regulate the practice and ensure that surrogate mothers are protected from exploitation while ensuring their well-being and rights. The law introduces several safeguards to ensure that surrogacy is carried out ethically, and that the surrogate mother receives fair compensation, healthcare, and emotional support.

Legal Protections and Rights for Surrogate Mothers in India

Surrogacy (Regulation) Bill, 2020

The Surrogacy (Regulation) Bill, 2020 is the primary legislation aimed at regulating the practice of surrogacy in India. This Bill is designed to ensure the protection of surrogate mothers' rights while preventing exploitation and unethical practices. Key provisions include:

• Altruistic Surrogacy: The Bill allows only altruistic surrogacy, where the surrogate mother is not paid for carrying the child, except for reasonable medical expenses and insurance coverage.
• No Commercial Surrogacy: The law prohibits commercial surrogacy, which had led to the exploitation of surrogate mothers in the past, where they were often paid large sums but lacked adequate protections.
• Age of Surrogate Mother: The surrogate mother must be between 25 to 35 years old and should have been a mother herself to ensure she is physically and mentally fit for surrogacy.

Informed Consent

Informed Consent is a fundamental requirement in surrogacy arrangements. Surrogate mothers must provide written consent, acknowledging they understand the procedure, medical risks, emotional implications, and legal aspects of surrogacy. This consent should be given voluntarily, without any coercion, and the surrogate must be fully informed of her rights, health risks, and the legal ramifications of the process.

Health and Medical Safeguards

Surrogate mothers are entitled to comprehensive medical care throughout the pregnancy. This includes regular checkups, prenatal care, hospitalizations, and any medical treatments required due to complications during the pregnancy. The law mandates that the intended parents must bear the medical costs, and the surrogate mother must be covered by an insurance policy that provides financial protection in case of complications, disabilities, or death. If the surrogate mother experiences any health issues or complications, she has the right to stop the process, and her decision should be respected.

Compensation and Insurance

Surrogate mothers are entitled to reasonable compensation, which covers medical expenses, insurance, and any other related expenses, but commercial compensation is not allowed under the Surrogacy (Regulation) Bill, 2020. The compensation must not be seen as a business transaction but as an allowance for her time, effort, and medical costs. The surrogate mother must also have health insurance that covers risks during the pregnancy, childbirth, and post-natal care.

Post-Birth Rights and Care

After the birth, the surrogate mother has the right to post-natal care to ensure her physical and mental health. The law requires that surrogate mothers be provided with emotional and psychological support during and after the birth.

Custody of the Child

The law ensures that once the child is born, the intended parents assume legal custody. The surrogate mother does not retain any parental rights, but she has the right to emotional and psychological support following the delivery.

Ban on Exploitative Practices

The Surrogacy (Regulation) Bill, 2020 aims to prevent exploitation by prohibiting practices such as the use of sex-selective surrogacy, exploitation of poor women, and unethical commercial arrangements. The surrogate mother must also be protected from any pressure from the intended parents, the surrogacy agency, or any other third parties.

Legal Rights of the Surrogate Mother

Legal Recognition: The surrogate mother has the right to be legally recognized as the birth mother of the child until the birth certificate is issued in the name of the intended parents.

The surrogate has the right to terminate the pregnancy if her health is at risk, and such decisions should be respected legally and medically.

Legal Framework for Domestic and International Surrogacy

The Surrogacy (Regulation) Bill makes it clear that surrogacy for foreign nationals is not allowed, and only Indian citizens who meet the necessary criteria can engage in surrogacy. This provision ensures that Indian women are not exploited for the purposes of international surrogacy arrangements.

Example

Let’s consider the case of Priya, a 30-year-old woman in India, who agrees to become a surrogate mother for a couple. Before she starts, she is fully informed about the medical risks, financial compensation, and the rights she has throughout the process. She signs a consent form, and the intended parents pay for her medical expenses and provide her with health insurance. During her pregnancy, she receives regular prenatal care and emotional support. If any complications arise, she can opt to terminate the pregnancy, and her health will be prioritized. After childbirth, Priya receives post-natal care, and the child is handed over to the intended parents as per the legal framework.