- 19-Apr-2025
- Healthcare and Medical Malpractice
In India, the legal framework governing surrogacy, especially under the Surrogacy (Regulation) Act, 2021, aims to balance the rights and well-being of both the surrogate mother and the intended parents. The issue of whether a surrogate mother can terminate the pregnancy without the consent of the intended parents is a complex legal and ethical question. The law provides protections for the surrogate’s health and safety, allowing her to make decisions regarding her health, but it also takes into account the rights of the intended parents.
The Surrogacy (Regulation) Act, 2021 prioritizes the health and well-being of the surrogate mother. If a surrogate mother’s life or health is at serious risk due to pregnancy complications, she has the right to seek a termination (abortion) under medical advice, even without the consent of the intended parents. This is based on the principle that the surrogate mother's health is paramount.
In cases where continuing the pregnancy could lead to grave health risks or medical complications, the surrogate mother may have the right to terminate the pregnancy as part of her right to life and health.
The Medical Termination of Pregnancy Act, 1971 governs the conditions under which an abortion may be performed in India. Under this law:
While surrogacy agreements typically require the surrogate mother to act in good faith and follow the intended parents' wishes (including agreeing to the terms of pregnancy), her autonomy and health rights are protected by law.
If the surrogate mother faces serious medical complications, she may choose to terminate the pregnancy to protect her own health. The surrogacy agreement must specify the conditions under which the surrogate’s right to abortion is respected.
In any medical scenario where continuing the pregnancy threatens her life, the surrogate mother’s right to choose abortion overrides the intended parents' wishes.
In typical surrogacy agreements, intended parents give consent to the surrogate mother’s involvement in the process. However, if a termination is considered, the intended parents’ consent may be required unless there are life-threatening medical reasons.
Under normal circumstances, a surrogate mother is expected to consult the intended parents before making any significant decisions about the pregnancy, including a termination. However, if the surrogate mother’s life or health is at risk, the intended parents’ prior consent becomes secondary to the medical emergency.
The law requires that any decision to terminate a pregnancy must be medically justified and must follow ethical guidelines:
The surrogacy agreement usually outlines the rights and responsibilities of the surrogate mother and the intended parents. However, even if the agreement includes provisions that the surrogate mother agrees to carry the pregnancy to term, the law allows her to terminate if:
In cases of termination, it is also important that the surrogate mother receives psychological support to help her deal with the emotional challenges of the decision. Surrogacy clinics are required to provide emotional and psychological counseling to ensure that the surrogate mother’s mental health is supported throughout the process.
Neelam, a surrogate mother, is carrying a child for an infertile couple. At 20 weeks, Neelam develops severe pre-eclampsia, a potentially life-threatening condition. Her doctor advises immediate termination of the pregnancy to save her life, and the medical reports confirm that continuing the pregnancy would be too risky for her. Neelam, after consulting with her doctor, chooses to proceed with the abortion, prioritizing her health over the intended parents' wishes. Although the intended parents wanted the pregnancy to continue, they are legally obligated to respect Neelam's right to protect her life and health. The surrogacy agreement included a clause specifying that in case of medical risks, the surrogate’s health would take precedence.
Under the Surrogacy (Regulation) Act, 2021, surrogate mothers have the right to terminate the pregnancy if it poses a serious risk to their health or life, and this right supersedes the consent of the intended parents in certain situations. The Medical Termination of Pregnancy Act allows for pregnancy termination based on medical grounds, including threats to the surrogate’s health and severe fetal abnormalities. While the surrogate is generally expected to consult the intended parents regarding major decisions, her health and safety are prioritized by law. The surrogacy agreement should include provisions for such medical emergencies, ensuring that the surrogate mother’s autonomy and well-being are respected throughout the surrogacy process.
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